Fleming v Commissioner of Police [2017] NSWIRComm 1023

Industrial Relations Commission New South Wales Medium Neutral Citation: Fleming v Commissioner of Police [2017] NSWIRComm 1023 Hearing dates: 20, 21 & 22 March 2017 Date of orders: 11 May 2017 Decision date: 11 May 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: (1) John Fleming is to be reinstated to the position he held with the NSW Police Force immediately before his dismissal on 15 July 2016 on the same terms and conditions as applied to his position at that time. (2) Order (1) is to take effect on and from Monday 29 May 2017. (3) No order is made for payment to Mr Fleming for the period between the time of his dismissal and 29 May 2017, which period is not to count as service for any purpose. (4) Despite order (3) Mr Fleming's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders (1) and (2). Catchwords: UNFAIR DISMISSAL – allegations of misconduct proven by respondent – breach of direction not to work flex time without approval – swearing and abusive behaviour towards supervisors – riding bicycle in a reckless manner on police property – allegation of dishonesty abandoned in proceedings – difficulty with working of flex time – inconsistent approaches by supervisors to granting permission to work flex time – allegations of swearing at and being abusive towards supervisors sustained – seriousness of misconduct – mitigating factors – on balance dismissal found to be harsh – practicability of reinstatement – reinstatement ordered – back pay not ordered Legislation Cited: Industrial Relations Act 1996 Cases Cited: Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 Category: Principal judgment Parties: John Fleming (Applicant)

Commissioner of Police (Respondent) Representation: Counsel: Mr R Reitano (Applicant) Ms V Bulut (Respondent)

Solicitors: Mr M Jaloussis, W G McNally Jones Staff Lawyers (Applicant) Mr B Belling, K & L Gates (Respondent) File Number(s): 2016/00216721

DECISION 1. The applicant, John Fleming, commenced employment with the NSW Police Force on 30 October 2000 as an Imaging Technician in the Forensic Imaging Section ("FIS") of the Forensic Services Group. By letter dated 9 June 2016 from Acting Assistant Commissioner Greg Rolph, Acting Commander Professional Standards Command, the applicant was advised of the termination of his employment with effect from 15 July 2016. The reason given for the dismissal of the applicant was "proven misconduct". 2. At the time of the applicant's dismissal, the FIS was under the command of Senior Sergeant Arnold Jansen. Sergeants Lincoln O'Brien, Brian Barnes and Brett Kuhner were employed as supervisors in the FIS and were responsible to Senior Sergeant Jansen. Several civilian employees, including the applicant, were employed in the section and worked alongside the sworn police officers. Senior Sergeant Jansen was responsible to Detective Chief Inspector Wayne Hoffman who, in turn, was responsible to Acting Superintendent Christie. 3. The dismissal of the applicant followed correspondence to him from Detective Chief Superintendent Rolph, as he then was, dated 15 January 2016 which set out nine allegations of misconduct by the applicant. Those allegations were: 1. You breached a direction previously given to you not to work more than 7 hours per day without obtaining the necessary approval. 2. On 23 and 24 November 2015 you yelled and swore at Sergeant O'Brien in an aggressive manner. 3. You dishonestly claimed to Senior Sergeant Jansen that you had an appointment with Inspector Hoffman at the SPC on 01 and 02 December 2015. 4. You failed to obtain the necessary approval to work at the SPC on 01 and 02 December 2015. 5. You breached a direction given to you by Detective Chief Inspector Hoffman by failing to adequately account for the time you spent at the SPC on 01 and 02 December 2015. 6. You dishonestly stated to Senior Sergeant Jansen that A/Superintendent Christie had advised you not to speak to Sergeant O'Brien or Senior Sergeant Jansen on 01 December 2015. 7. You were absent from your normal workplace on 01 and 02 December 2015 without obtaining the necessary approval. 8. You rode your bicycle in a reckless manner on NSW Police Force property between January and December 2015, endangering others and being rude and disrespectful, following numerous discussions and warnings against such behaviour. 9. On 07 January 2016 you swore and were abusive and intimidating towards Sergeant Barnes. 1. The applicant provided Detective Chief Superintendent Rolph with a detailed written response to each of the allegations. By letter dated 11 March 2016, Detective Chief Superintendent Rolph advised the applicant, in relation to each of the nine allegations of misconduct, as follows: On the balance of probabilities relying on the available evidence this allegation is proven. 1. Detective Chief Superintendent Rolph advised the applicant that the most appropriate action which he proposed to take to maintain appropriate standards of conduct and work related performance in the NSW Police Force, and to protect the welfare of all NSW Police Force employees, was termination of the applicant's employment without him being given the opportunity to resign. The applicant was invited to make submissions to Detective Chief Superintendent Rolph on his findings and proposal to terminate the applicant's employment, and to have a face to face meeting. 2. The applicant provided a further detailed written submission and met with Detective Chief Superintendent Rolph, on 13 May 2016. Following this meeting, the applicant was dismissed with effect from 15 July 2016. 3. In the letter of dismissal, Acting Assistant Commissioner Rolph stated in part: It is clear throughout the disciplinary process in this matter to date that you underestimate the consequences and potential consequences of your actions which are at the core of the allegation. The actual consequences of your violent outbursts are that they have caused enough fear or concern in not only your colleagues but those from outside the Forensic Imaging Section to formally report your behaviour and conduct. In each of your responses to me you have admitted to those outbursts (including using offensive language) however have displayed no contrition and in fact have stated that you felt that those outbursts were warranted. …………………… Similarly, the actual consequence of your dishonesty is an erosion of trust and confidence which are essential elements in the employer-employee relationship. I am of the opinion that your proposition that your dishonesty was in fact a mistake is nonsense. On 01 December 2015 you advised Senior Sergeant Jansen that you had made an appointment with Detective Chief Inspector Hoffman and sought approval to attend the SPC on that day for that purpose. There was no such appointment, rather Detective Chief Inspector Hoffman had emailed you and advised you that he would be on leave until 01 December 2015 and there was no further interaction between Detective Chief Inspector Hoffman and yourself and certainly no fixed mutual agreement for a meeting which is a necessary characteristic of an "appointment". In an email dated 01 December 2015 you advised Senior Sergeant Jansen that A/Superintendent Christie had directed you to return to the SPC on 02 December 2015 to speak with Detective Chief Inspector Hoffman. I have been advised that there was never any such direction rather you were told to contact Detective Chief Inspector Hoffman at the start of your shift the following day (02 December 2015). In that same email you advised Senior Sergeant Jansen that A/Superintendent Christie had directed you to stay at the SPC for the rest of the day, not to talk to your supervisor (Sergeant O'Brien) or Senior Sergeant Jansen and to return to the SPC on the following day. I have been advised that you were told not to contact your supervisor unless for technical matters relevant to your tasks for that day only. Further, you were advised not to contact Sgt O'Brien to speak about the incident surrounding your absence from the workplace and flexible rostering and that this matter would be managed by Detective Chief Inspector Hoffman on his return the next day. You were never given a direction not to speak with Senior Sergeant Jansen. ………………… I am of the view that your proven misconduct highlights your deceptiveness (in misrepresenting the words of others to justify or explain your actions) which goes against your integrity and your aggressive and intimidating behaviour (which creates a risk to the welfare of other staff). 1. During final addresses in these proceedings, counsel for the respondent, the Commissioner of Police, was asked to identify which of the nine allegations of misconduct were being relied upon to support the dismissal of the applicant. The following exchange occurred: COMMISSIONER: Can you just identify which they are from that list? BULUT: Yes, I can do that. The first we say is proven, that is, that Mr Fleming breached a direction previously given to him not to work more than seven hours per day without obtaining the necessary approval. That's the part. The yelling and swearing at Sergeant O'Brien, we say that's clearly proven. Dishonestly claiming to Senior Sergeant Jansen that he had an appointment. We don't go to that obviously. Senior Sergeant Jansen isn't here to give evidence about that. COMMISSIONER: So I don't need to concern myself with that? BULUT: You don't need to concern yourself with that, that's correct. The next one is "you failed to obtain the necessary approval to work at the SPC". We don't go to that. We say that allegation doesn't arise out of the evidence in these proceedings. The next one is that "you breached a direction given to you by DCI Hoffman by failing to adequately account". That's not - again, it doesn't arise, we say. COMMISSIONER: When you say "it doesn't arise", can I take that to mean you don't rely upon that? BULUT: We don't rely upon it, that's correct, yes; I mean, on the evidence we've put forward. The next one is: "You dishonestly stated to Senior Constable Jansen that Acting Superintendent Christie had advised you not to speak to Sergeant O'Brien and Senior Sergeant Jansen on 1 December." We say there is evidence to support that but that's not a submission that I'll be making. I don't think we need to go there, in essence. COMMISSIONER: When you use the term you "don't need to go there--" BULUT: I won't be asking the Commission to make a finding with respect to that. COMMISSIONER: So you don't rely upon that as a basis for the termination? BULUT: That's correct. COMMISSIONER: Thank you. BULUT: Then we say: "You were absent from your normal workplace on 1 and 2 December without obtaining the necessary approval." I will be saying something about that, yes. COMMISSIONER: So you rely upon it? BULUT: I'll rely upon that. COMMISSIONER: Thank you. BULUT: The next is that: "You rode your bicycle in a reckless manner on New South Wales police force property between January and December 2015, endangering others and being rude and disrespectful, following numerous discussions and warnings against such behaviour." I say that is well and truly proven. And then the next allegation being that: "On 7 January 2016 you swore and were abusive and intimidating towards Sergeant Barnes." We say well and truly established in this case. COMMISSIONER: Thank you. 1. I took it from this exchange that the respondent was only relying upon allegations (1), (2), (7), (8) and (9) to support the dismissal of the applicant. The allegation of dishonesty on the part of the applicant (allegations (3) and (6)), which featured so prominently in the letter of dismissal from Acting Assistant Commissioner Rolph, was effectively abandoned in these proceedings. 2. It is apparent that the "violent outbursts" referred to by Acting Assistant Commissioner Rolph comprised the exchanges between the applicant and Sergeant O'Brien on 23 and 24 November 2015 (allegation (2)), and the exchange between the applicant and Sergeant Barnes on 7 January 2016 (allegation (9)). Apart from those incidents, the respondent also continued to rely upon the alleged breach of a direction in relation to the applicant working more than seven hours per day without approval (allegation (1)), the applicant being absent from his normal place of work on 1 and 2 December 2015 without obtaining the necessary approval (allegation (7)) and the manner in which the applicant rode his bicycle on police property and his response to discussions and warnings about same (allegation (8)).

Background 1. According to the evidence given by the applicant, he initially worked at the Sydney Police Centre ("SPC") in Goulburn Street, Surry Hills. His work consisted of various photographic, darkroom and computer imaging duties in the office, lab/darkroom, studio and at external locations. 2. The terms and conditions of employment of the civilian employees in the FIS, such as the applicant, were governed by the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009 ("Award"). The standard hours of work for these employees are 35 hours per week. Clause 23 – Flexible Working Hours, of the Award establishes a system for the working of flexible working hours (flex time) by employees, allowing for the working of daily hours in excess of the standard seven hours, which are credited to the employee's flex time balance and which may be taken as paid leave at some future time. 3. By contrast, sworn police officers, including those who worked alongside the applicant, work a 38 hour week and do not have access to flex time arrangements. 4. For the first ten years of his employment, the applicant worked in accordance with the flex time arrangements under the Award. When there was work available to be done, the civilian employees could work back and take the equivalent time off later as flex leave. At the end of a 12 week settlement period, any flex time worked above the standard 420 hours, and not taken as flex leave during that period, could be kept, up to a maximum of ten hours, and carried forward to the next settlement period. 5. According to the applicant, the flex time system worked well and without any difficulties for the applicant until about 2009, a year after Senior Sergeant Jansen became the Commander of the FIS. The applicant clashed with Senior Sergeant Jansen on a number of issues, such as the taking of tea breaks for employees who started work at 9.30am, and a requirement that the applicant perform computer assisted drafting ("CAD") which, according to the applicant, was not part of his job description, grade or pay level. 6. During 2009, the applicant was required to participate in a Remedial Performance Plan. The purpose of the plan was to improve the competency and performance of the applicant in the areas of: * Complying with reasonable directions from supervisors * Customer Service * Excessive leave * Completion of tasks within appropriate timeframes * Carrying out duties as directed by supervisors * Informing supervisors of work status and progress * Treating co-workers and supervisors with respect * Compliance with duty book requirements * Compliance with flexi-time agreement and conditions: * Adherence to core hours and seeking approval for variations * 24hrs notice for flex day requests * Filling out hours at completion of shift 1. In 2009, a disagreement over the CAD issue led to an argument between the applicant and Senior Sergeant Jansen during which the applicant was ordered to leave the building. According to the applicant, that evening he received a phone call from Inspector Cairnduff, Senior Sergeant Jansen's superior at that time, directing him to take leave for a month. The applicant took sick leave. During this period of sick leave, on 30 June 2009, Senior Sergeant Jansen signed a referral for the applicant to have a psychiatric assessment regarding his fitness to continue working for the NSW Police Force. That referral document contained the following: BACKGROUND: FLEMING has been employed by NSW Police as an Imaging Technician since 1990. He has a history of violent outbursts as documented in attached duty book photocopies, and has threatened other staff members with violence. He has been on sick leave and workers compensation on previous occasions due to stress, headaches and nervous conditions. He is currently on a Performance Management Plan due to workplace issues and poor performance. COMMENT: FLEMING has recently been directed to take his excess recreational leave and taken sick leave instead citing stress and headaches. He has recently been trained in some additional tasks such as Computer Assisted Drawing and has then refused to carry out the work he was trained for stating it was not in his job description. He has repeatedly stated that work is causing him stress and he stays up at night worrying about workplace issues, then has difficulty performing his duties at work. 1. Apart from a reference in the evidence of Sergeant O'Brien to at least two occasions in around 2007 or 2008 when it was alleged that the applicant raised his voice and screamed at a civilian colleague because the applicant was of the view that her radio music was too loud, and a separate reference in the evidence to an "altercation" between the applicant and Sergeant O'Brien in 2009, the respondent led no evidence as to the "history of violent outbursts" or the threats of violence to other staff members, as referred to by Senior Sergeant Jansen in this referral document. The "duty book photocopies", which were apparently attached to the referral document, were not produced to the Commission in these proceedings. 2. A report on the applicant by Dr Matthew Paul, Consultant Occupational Physician, dated 16 September 2009, noted the following: GENERAL SUMMARY: Mr Fleming does not have a psychological condition. He has problems controlling his temper. He does not want to do CAD work until his job description is upgraded and his pay increased. This is inconsistent with his complaints of not being given any work to do. He has an issue with not being promoted in late 2007, and subsequently appealed to the GREAT and Professional Standards. His reported anxiety after being asked to do CAD training in February 2009 is consistent with his perception that he should not have to do this work. Mr Fleming reports being depressed from 1 November 2007, the day he learnt of his unsuccessful application for promotion, until late 2007 or early 2008. He reports being depressed for up to three months, twenty or thirty years ago. He complains of stress when he does not get what he wants at work. RECOMMENDATIONS TO ASSIST WITH RETURN TO WORK: Fitness for Work Current Capability & Prognosis Regarding Operational Capacity: Mr Fleming is fit for his usual duties as a Forensic Technician in the Police. His behavioural issues should be managed using a performance management approach with close supervision. He should have access to an EAP program so that he can manage his own stress more appropriately. Return to Non Operational Work: Mr Fleming is fit for return to his usual non-operational role as a Forensic Technician with the NSW Police Force. No recommended changes to his work tasks or environment are required to facilitate a return to work. 1. The applicant claimed that, in or about 2012, it was getting more and more difficult for him to work extra hours and get flex time credit. 2. In July 2014, the FIS relocated to new premises in Pemulwuy. 3. The applicant stated that he was continually being questioned by his supervisors, Sergeant Barnes and, later in 2015, Sergeant O'Brien, about the need to stay back to finish a particular job and why it could not wait until the next day to be finished. 4. In or about early or mid 2015, the applicant had asked to work back on some jobs but was refused permission by Sergeant O'Brien. Then, as the applicant was packing up to go home, Sergeant O'Brien asked him if he could work back on flex time so that he could let another employee, who had forgotten his keys, into the building. This would alleviate the need for Sergeant O'Brien, or another sworn police officer, to stay back after their finishing time. 5. These incidents frustrated the applicant and led to an argument between himself and Sergeant O'Brien on 23 November 2015 when the applicant requested to work flex time and Sergeant O'Brien refused this request on the ground that the work was not urgent. This incident, and what occurred between these two men on the following day, 24 November 2015, formed the basis of allegation (2) of the nine allegations of misconduct which were levelled against the applicant on 15 January 2016 and which, ultimately, led to the dismissal of the applicant. In addition, it would be alleged against the applicant that he had breached a direction, previously given to him, to not work more than seven hours per day without obtaining the necessary approval from a supervisor (allegation (1)). These allegations are discussed in more detail later in these reasons for decision 6. Following the incidents of 23 and 24 November 2015, the applicant was placed on a Conduct Management Plan for three months by Senior Sergeant Jansen. One of the reasons given to the applicant for placing him on this plan was his failure to comply with directions to seek approval from a supervisor prior to working more than seven hours a day. As part of the plan, the applicant was not permitted to work flex time. 7. On 30 November 2015, the applicant advised Senior Sergeant Jansen that he did not want to discuss any matters with the Senior Sergeant until he (the applicant) had met with Detective Chief Inspector Hoffman the following day, 1 December. Senior Sergeant Jansen advised the applicant that Detective Chief Inspector Hoffman was not due back from leave until 2 December. The applicant told Senior Sergeant Jansen that he had corresponded with Detective Chief Inspector Hoffman and had been advised that the Detective Chief Inspector would be back at work on 1 December. The applicant was of the understanding that he had an appointment to meet Detective Chief Inspector Hoffman at the SPC on that day. According to the applicant, Senior Sergeant Jansen approved his attendance at the SPC on 1 December to meet with Detective Chief Inspector Hoffman. It appears from an email exchange between Senior Sergeant Jansen and the applicant on 1 December, that Senior Sergeant Jansen was of the view that he had not authorised the attendance of the applicant at the SPC on 1 December. 8. On 1 December 2015, the applicant went to the SPC to meet with Detective Chief Inspector Hoffman but was advised that the Detective Chief Inspector was not due back at work until the following day. The applicant was contacted by Acting Superintendent Christie, the acting Identification Services Branch Commander, to discuss his concerns. According to the applicant, Acting Superintendent Christie instructed him to remain at the SPC studio for the remainder of his shift to complete his work, which he could partly access through the computer system. The applicant was told that he could expect Detective Chief Inspector Hoffman's second in command to drop in to check on the applicant's welfare. 9. That afternoon, the applicant was sent an email from Senior Sergeant Jansen requesting that he send Sergeant O'Brien a detailed account of the duties he was performing at the SPC that day. He was also directed to provide Senior Sergeant Jansen with a full explanation as to why he had attended the SPC that day without the authorisation of Senior Sergeant Jansen or Sergeant O'Brien. 10. The applicant met with Detective Chief Inspector Hoffman the following day, 2 December 2015, and then remained at the SPC for the rest of his shift. Before he completed his shift that day, the applicant emailed Detective Chief Inspector Hoffman with a list of the work he had done over the past two days. 11. It does not appear that the issue of the applicant's attendance at the SPC on 1 and 2 December 2015 was further pursued at that time. However, the conversation between the applicant and Senior Sergeant Jansen on 30 November, and the applicant's attendance at the SPC on 1 and 2 December, would subsequently form the basis of allegations (3), (4), (5), (6) and (7) of the nine allegations of misconduct which ultimately led to the dismissal of the applicant. As noted previously, this group of allegations, apart from allegation (7), was effectively abandoned by the respondent during these proceedings. 12. In late December 2015 or early January 2016, Sergeant Barnes asked the applicant if he had called out to someone whilst on his bicycle on 8 December at the swipe point, which opens the security gates to the building which houses the FIS. The applicant told Sergeant Barnes that he had called out to a person to warn her that he was behind her. In an unrelated incident in January 2016, the applicant received a traffic infringement notice ("TIN") in the mail for not stopping at a red light whilst riding his bicycle on 23 December 2015. These two incidents would later form the basis of allegation (8) of the nine allegations of misconduct which led to the applicant's dismissal. 13. On 7 January 2016, the applicant had a conversation with Sergeant Barnes during which the Sergeant told him that he was not permitted to accompany another officer to an offsite laboratory to assist that officer's understanding of film scanning for a sensitive case. Sergeant Barnes refused to allow the applicant to go off site because of his "attitude". The conversation that then ensued formed the basis of allegation (9) of the nine allegations of misconduct which led to the applicant's dismissal. 14. According to the applicant, in or about the second week of January 2016, he was called to a meeting by Senior Sergeant Jansen and told in words to the following effect: Your conduct management plan is finished. You can go on flex time. You don't have to ask permission to work flex, but there has to be a team leader present for you to work back. 1. On or about 15 January 2016, the applicant received a letter from Detective Chief Inspector Rolph setting out the nine allegations of misconduct against him. 2. The applicant worked flex time until 6 April 2016, when he was called to a meeting with Senior Sergeant Jansen and Sergeant Kuhner and told that he was being placed on an Interim Risk Management Plan because of the allegations of misconduct against him, and that he would not be able to work flex time. 3. As a consequence of the subsequent finding, by then Acting Assistant Commissioner Rolph, that each of the nine allegations of misconduct against him was proven, the applicant was dismissed with effect from 15 July 2016.

The flex time issue 1. Clause 23 – Flexible Working Hours, of the Award contains the following provisions: 23.2 Statement of Intent The Association, staff members and management are committed to fostering flexible work practices under Flexible Working Hours for the benefit of staff members and the achievement of the organisation's goals. The Association, staff members and management will work co-operatively to ensure the successful implementation of Flexible Working Hours. All parties are committed to managing time worked to avoid forfeiture of hours. 23.3 Statement of Agreed Principles Decisions regarding working hours and patterns of work will be made by taking into account the following factors: 23.3.1 The convenience of the NSW Police Force in terms of: (a) the requirements of a particular work unit (b) the operational requirements of the NSW Police Force (c) the availability of work 22.3.2 The personal commitments and needs of the staff members. ……………… 23.9 Hours Worked ……………… 23.9.3 A staff member may only accumulate credit hours in excess of the minimum daily contract hours where their supervisor is satisfied that work is available and it is convenient to the NSW Police Force for the staff member to so work. 1. Counsel for the appellant opened his case by asserting that, from 2012, there were "issues" between Senior Sergeant Jansen and the applicant concerning the applicant's ability to work flex time and accrue flex leave. Counsel stated as follows: From 2012 to 2015 there were issues, and I'm deliberately expressing it as lightly as I possibly can, because I don't really want to chase all these rabbits down burrows about what happened at various times in ancient history between 2012 and 2015 concerning the flexible working hours arrangement that existed between Mr Fleming and his employer, save to say that there were issues about it where, on the one hand, Jansen and others were saying "You can't work flexible working hours" and Mr Fleming was saying "Well I can, it's an award entitlement, and what's your reason for not allowing me to have the benefit of flexible working hours?". I'll take you, in the course of my opening, to the award provision, but, for present purposes, I simply highlight that there was an issue. The answer most frequently or usually given to Mr Fleming as to why he couldn't work flexible working hours was because he didn't have any urgent work, and flexible working hours were only available to those who had urgent work. That finds no support in the award provision, it may find some point in some police fantasy land, but it finds no support in the award provision. And, in any event, on most occasions when Mr Fleming was asking to work flexitime, it was because he had work to complete. Whether he completed it tonight, working 'til, say, 7 o'clock or 7.30, or he completed it between 9.00 and 11am tomorrow morning, was no skin off anyone's nose. You didn't pay more to have him finish the work tonight, as distinct from tomorrow. 1. In his evidence in chief, the applicant claimed: From early 2015, I was very regularly refused flextime credit outright, mainly by O'Brien, but also by Barnes on some occasions. I was told the work was not urgent or that it could wait. 1. In final addresses, counsel for the respondent dealt with the issue in the following terms: Okay, so to now lead to one matter that I want to start with to really put to bed one particular "sore", I think is the way that it's been described. It's this notion that Mr Fleming was refused, constantly refused or persistently refused the opportunity to work additional hours. That's put squarely by Mr Fleming in his evidence, by my learned friend in submissions, that somehow there was this persistent conduct where he was told, "You can't work," constant refusal, and therefore that it came to his boiling point because he didn't know how to deal with the situation and that's how it escalated et cetera. I just want to put that well and truly to bed. 1. Counsel then stated that the allegation that the applicant worked more than seven hours per day, without obtaining the necessary approval, related only to 17, 18 and 19 November 2015, when the applicant worked 8 hours and 45 minutes on each of those three days. Counsel then analysed part of a spread sheet which set out the hours which the applicant worked each day from 1 June 2015 to 1 May 2016. During the period 1 August to 16 November 2015, the applicant worked for more than seven hours on 37 out of 52 shifts worked, or just over 71% of the time. Counsel then submitted: So in terms of this idea that he was discriminated against, differently treated, that he was constantly refused and the like, there is simply no basis for that. I challenge that premise, and that premise undermines the entire case put on by the applicant and their entire case theory. So I say that in circumstances where there is evidence that Mr Fleming worked 71 per cent days when he worked additional hours, and there was no issue raised by anybody and there's no evidence of an issue being raised by anybody about those flex hours being worked, that he was afforded clearly the opportunity to work the additional hours. There was no "festering sore" here. There was no ongoing issue. There was no persistent discrimination and refusals and the like. 1. However, the pattern of the applicant working more than seven hours a day was not consistent. For example, in the month of July 2015, the applicant worked 18 shifts. Of these shifts, nine were of seven hours duration and nine extended beyond seven hours. 2. I accept the applicant's evidence that, from about 2012, refusal by his supervisors to permit him to work beyond seven hours on some days when he had requested to do so, became the cause of frustration to him. So much was acknowledged by Acting Assistant Commissioner Greg Rolph in the dismissal letter of 9 June 2016 in the following terms; I acknowledge your argument that the root of your misconduct in the current matter is your inability to accrue flex time which is in some regard true however it must be remembered that the proven misconduct is your violent outbursts, dishonesty and otherwise poor conduct. I am of the view that you have taken exception to the fact that you are not allowed to accrue flex time without approval which in turn led your violent outbursts and the issues associated with you seeking to meet with Detective Chief Inspector Hoffman. 1. I am also satisfied that a number of the applicant's supervisors held the view that approval would only be given for the applicant to work beyond seven hours a day, and accrue flex time, if the work he was doing at that time was regarded by them as urgent, and there was a supervisor present to supervise the applicant whilst he was working the additional time. However, the evidence given by the respondent's witnesses, as to the necessity for the work to be urgent and the need for a supervisor to be present when employees worked additional hours, was less than consistent. For example, Sergeant O'Brien, who has been with the FIS since late 2006, held the view that approval to work extended hours would only be given when the work to be done was urgent. 2. Sergeant O'Brien stated in his evidence in chief: In my role as Sergeant I was aware of the tasks that the team was required to perform. From my knowledge of the tasks that the team were required to perform, Mr Fleming was rarely given urgent jobs that needed to be completed on the same day. In circumstances where jobs are not urgent and can be worked on the next day, additional hours are not necessary. In such cases I did not approve additional hours being worked. This evidence is difficult to reconcile with the submission put by the respondent that approval was given to the applicant to work additional hours on the majority of his shifts. 1. During the cross-examination of Sergeant O'Brien, the following exchange occurred: Q. The only thing you ever said to him by way of a reason, the only thing you ever said to him by way of a reason is, "Is it urgent?" A. That's right. Q. That was the only reason that you used for not allowing him to work flex time? A. That's right. Q. You never said to him, "If I let you work back, you won't have anything to do tomorrow," did you? A. No. Q. You never said to him, "If I let you work back, there's no supervisor here," did you? A. No. Q. The only reason that you fastened upon was urgency? A. That's right. Q. Correct? A. Yes. 1. And later: Q. I went through a series of these things, and I don't want to repeat them all, but you didn't say, for example, "Well, there's not going to be a supervisor in the office," or, "There's not going to be any work for you to do tomorrow," or anything like that. The only criteria you applied was the work was not urgent. A. That's right. Q. And what I want to suggest to you is that whether the work was urgent or not had nothing to do with the convenience to New South Wales Police of allowing him to work additional hours. A. Well, no, that's not how I looked at it. Q. Right. Do you want to explain that? A. Sure. Q. I'll give you the opportunity. A. There was two reasons that went into the thinking there. The first reason was, the additional hours that he would be working in the afternoon would be without a supervisor, which is inconvenient. Q. Yes. A. The second being the hours that he accrued working those extra hours would then have to be taken at a later date, which also had the possibility of being inconvenient for the police. Q. And in both of those cases you never said to him, "Look, John, you can't work this afternoon, or work late, or work back, because there won't be a supervisor here," did you? A. No, but that-- Q. You didn't say that? A. No I didn't. Q. And the reason you didn't say that is because that was never the basis upon which you refused him the opportunity to work additional hours. A. No, that's not right. Q. Otherwise you would have said it. A. Well, those things should be obvious to him. Q. All these obvious things, you would have said it; if there wasn't going to be a supervisor there, you wouldn't have worried about the urgency of the work, you would have said, "There's no supervisor here, you can't do it." A. No, look, had the work been urgent, then the need for a supervisor to be present is a lesser priority. Q. Oh, so you can work additional hours when there's not a supervisor there. A. If people are waiting on work to be completed for court, generally the next day, first thing the next morning, then that priority becomes a lesser priority, that's right. Q. So your evidence that there needed to be a supervisor there is not quite the whole story, is that correct? A. Well, generally it is. Generally, but there are exceptions that can be made, that's right. Q. But in the case of urgent work, a supervisor doesn't need to be there. A. Doesn't need to be present, that's right. 1. Sergeant Barnes has held the rank of Sergeant in the FIS since August 2009. He commenced with the Forensic Services Group in 2002. In responding to a claim by the applicant that his requests to work additional hours were regularly refused, Sergeant Barnes, stated: ... I say that if the job was not urgent and could be completed the next day, Mr Fleming was told to complete the job the next day and not stay back to work additional hours. If the job was urgent, Mr Fleming would have been permitted to stay back to do the work. 1. Under cross-examination, Sergeant Barnes gave the following evidence: Q. And would he (the applicant) come to you and say, "Look, I've got to finish this job, and I'm nearly finished but I need to work for more house (hours); can I?" and you would approve that? A. Sometimes I may have, sometimes I may have requested the urgency of it for the need to work that extra time. Q. Sometimes it would depend on urgency and sometimes it wouldn't, you'd just make an assessment as to whether you'd approve it or not. A. No, mostly it would go on urgency, whether there was a requirement to work back then or whether it could be done at some other time. 1. And later, in an exchange with the Commission: COMMISSIONER: I have one or two matters. Q. I think you indicated, in answer to a question from Mr Reitano, that you would approve Mr Fleming working additional hours, flex hours, if there was urgent work to be done. A. If it was urgent and there was a requirement, yes. Q. And if that was the case, was it necessary that a supervisor such as yourself would have to remain back as well in the office? A. It would be more, sort of - it would be proper for that to take place, given the circumstances of his conduct, knowing that there has been times when extra time has been added to a shift, and whether the job that is requested to be done is being done, sort of thing, which is general across the board. Q. Well, that's what I'm trying to understand. Putting aside the issue of urgency, why is it necessary, or is it necessary, in order to approve flexitime or additional hours for any employee covered by that system, that a supervisor must also be present while those additional hours are being worked, for example, beyond 4 o'clock in the afternoon? A. It's - it may not be required all the time, but given the background of what we're dealing with, we would have thought that that would be something we should do. Q. When you say given the background of what we're dealing with, are you referring particularly to Mr Fleming, are you? A. Yes. With the accrual of extra time. Q. Well, what is it in the background of Mr Fleming that necessitated there to be a supervisor present when he worked additional hours? A. So we could see what was going on, that if the job was being performed outside normal working hours, that the job was actually being done, that the next morning that we would be confident in being able to go, "The job was done, yeah, overtime or extra hours was performed to do it, and yes, the job is ready". Q. Well, did you have any reason, based on any past incident, to be concerned that the job wasn't being done if he was left to work additional hours without supervision? A. I don't recall if there was a time when the alternative did happen, but, yeah. Q. But what? A. But we're in a position where we just want to make sure that if the job is being requested, then that the job is being done. Q. And if it wasn't convenient for a supervisor to remain back to perform that supervision, is it a case that he was refused the opportunity to work those additional hours? A. If it was an urgent job-- Q. Sorry, putting aside urgency. A. Oh, yeah, if there's time to do it tomorrow, let's do it tomorrow. 1. However, Sergeant Kuhner, who joined the FIS in 2004 and was promoted to Sergeant in September 2009, placed far less importance on the requirements for the work to be urgent and for a supervisor to be present, in order for approval to be given for the working of additional hours. He gave the following evidence under cross-examination: Q. You can't lay down a hard and fast rule about when you approve it and when you won't? A. It would be difficult to articulate a hard and fast rule, yes. Q. Well one hard and fast rule that we've heard about in this case, we've heard about a couple, but one that we've heard about is that if the work is urgent, there will be other circumstances that will justify the working of additional flexible working hours other than urgent work, correct? A. Yes. 1. And later: Q. You can, again, you can work additional hours without a supervisor being present? A. Yes you can. Q. And there's nothing that you can point to as a generality that would require a supervisor to be present when you're working additional hours? I'm talking in the general? A. In general a supervisor would not necessarily have to be present to work additional hours. 1. Detective Chief Inspector Hoffman gave similar evidence in the following exchange with the Commission: COMMISSIONER: I might just have one matter. Q. You're aware of the arrangement that the unsworn civilian staff under your supervision have an entitlement to work - or there's an arrangement in place regarding flex time? A. Yes, sir. Q. And is it your understanding that for someone in Mr Fleming's position he's only entitled to work flex time if the work is of an urgent nature that needs to be finished urgently? A. Yes, sir. If the work is there. Not created Q. I'll come to that. A. Yeah, sure. Q. Assume that there's work there. Is it your understanding that flex time will only be approved if there's a necessity to complete that work on an urgent basis? A. It doesn't have to be urgent, sir. It just depends on the operational circumstances that there is work there and there is a need to have it done. Q. All right. Well, assuming-- A. And it's approved and everyone is happy for that to happen. Q. That's what I'm trying to understand. Assume that there's work there to be done. It's not necessarily urgent work but it does have to be done. On what basis would a supervisor approve or disapprove a request from someone like Mr Fleming to perform that work on an additional hours basis? A. We have a fair few unsworn staff there, sir, civilians, and it's an operational unit as well as office space. So there's a lot of work coming and going and happening, and the supervisors will balance out what needs to get - to be done. There could be other urgent material, more urgent than that, that would have to balance out. Q. Assume there's no other urgent material. There's just work there to be done. It could be done the following day or it could be done that-- A. Yes. Q. --evening or afternoon? A. Yes. Q. On what basis, as far as you're aware, would a supervisor approve or disapprove that that work be performed that evening on additional hours? A. If the need was required there, sir. If there was a genuine need for it. Q. Well-- A. Or it didn't have to wait till tomorrow. Q. Is it a requirement, in your understanding, that in order for approval to be given for someone like Mr Fleming to work additional hours, flex hours, that there also had to be physically present in the office during that period a supervisor? A. It could be at times, sir. Q. Why? A. Depending on the circumstances. The person might be on a conduct plan. Q. Assume that's not the case. A. Yeah. Q. Assume that there's no conduct plan. It's just non-urgent work that has to be done and the request is made that it be done on an additional hours basis. Is there a need for a supervisor to be present while someone like Mr Fleming is doing that work? A. Well, to be truthful, sir, there may not be a supervisor available either. They may be deployed operationally. So that it's one of those units that reacts, gets called out, and there may not be enough staff there to be supervision. Permission could be given to work unsupervised as well. Q. What I'm trying to understand is why is there thought to be a need for the supervisor to be physically present when someone like in Mr Fleming's position, or the other civilian staff who work flex time, are working back on the basis that they're performing work that's there to be done. Why is there a need for a supervisor to be present during that period? A. It depends on the actual-- Q. Let me just go back. A. Yeah, sure. Q. Is it your understanding that there is a need for a supervisor to be present? A. Not at all times. Q. What I'm trying to understand is what - by what criteria is it determined that there is a need to be a supervisor or there is not a need to be a supervisor? A. There's no set criteria, sir. Q. So it is, as far as you're aware, acceptable for a supervisor such as Mr Barnes or Mr Kuhner or Mr O'Brien, to approve that non-urgent work, just-- A. Yes. Q. --work that has to be done, may be performed on an additional hours or flex time basis without there being a supervisor physically present? A. Yes, that could happen. 1. The evidence of the respondent's witnesses establishes that there was an inconsistent approach being adopted by different supervisors to the granting of approval to the applicant to work additional hours. The inconsistency related to the questions of whether approval would only be given when the work to be done was urgent, and whether it was necessary for a supervisor to be present when the additional hours were being worked. 2. I agree with the submission put on behalf of the applicant, that neither the requirement for the work to be urgent, nor the necessity for a supervisor to be present, in order for the working of additional hours to be approved, is supported by any provision in the Award. 3. The Award establishes an entitlement for employees, such as the applicant, to work additional hours to accrue flex leave. That entitlement is subject to the following factors: (1) The convenience of the NSW Police Force in terms of: (a) the requirements of a particular work unit (b) the operational requirements of the NSW Police Force (c) the availability of work (2) The personal commitments and needs of the staff members. 1. It is possible (in theory at least) that some employees covered by the Award may only ever be engaged on work of a routine nature that is rarely, if ever, urgent. If this were the case, those employees would, on the approach of Sergeants O'Brien and Barnes, rarely, if ever, have the opportunity to work additional hours and accrue flex leave. Such a situation would be clearly at odds with the commitment of the parties to the Award, including management, "… to fostering flexible work practices under Flexible Working Hours for the benefit of staff and the achievement of the organisation's goals" (emphasis added). 2. The respondent did not, during the course of these proceedings, contend that employees could only be permitted to work additional hours to accrue flex leave if there was urgent work to be done, which was the position adopted by Sergeants O'Brien and Barnes. However, in the respondent's final written submissions, it was stated that the applicant held the "incorrect" belief that he was entitled to work additional hours simply if work was there to be done. The test in the Award is that the supervisor is satisfied that work is available and it is convenient to the NSW Police Force for the staff member to work the additional hours (subclause 23.9.3). Lack of convenience was not raised by Sergeants O'Brien and Barnes as the reason for refusing the applicant permission to work additional hours. Lack of urgency was. The applicant's "incorrect" belief as to his entitlement to work flex time was more closely aligned to the Award provision than was the understanding of his two supervisors. 3. It is not open to individual supervisors to impose additional arbitrary limitations on an employee's right to accrue flex leave, such as restricting the working of additional hours to urgent work when a supervisor is present. Yet, those limitations were imposed on the applicant by certain of his supervisors in an inconsistent manner. It is little wonder that the flex time issue created a deal of frustration on the part of the applicant. 4. That, however, is not to say that the frustration felt by the applicant over this issue excused any misconduct committed by him. But it does give some context to some of the incidents of alleged misconduct, and may go some way towards mitigating the seriousness of that alleged misconduct. 5. Before dealing with those remaining allegations of misconduct by the applicant, which the respondent continued to rely upon in these proceedings, I note, at this point, that Senior Sergeant Jansen was not called by the respondent to give evidence before the Commission. The respondent tendered into evidence a report by Senior Sergeant Jansen's treating doctor, Dr Paniani Patu, dated 16 March 2017, which state in part: Senior Sargeant Jansen presented with the complaints of not coping at work and needs time out. The diagnosis at that time was Adjustment disorder with depression and anxiety. ……………. The current diagnosis is that of depression and anxiety with Adjustment disorder ……………… It is my opinion that Senior Sargeant is currently not fit to give evidence and be cross-examined on or shortly after 20 March 2017.

The allegations of misconduct against the applicant relied upon by the respondent Allegation (1) – You breached a direction previously given to you not to work more than 7 hours per day without obtaining the necessary approval. 1. This allegation relates to the applicant working shifts of 8 hours and 45 minutes on 17, 18 and 19 November 2015 without obtaining approval. 2. It is not in dispute that the applicant was aware that he needed to obtain approval from a supervisor to work beyond seven hours on any shift. However, the applicant claimed that, in March 2015, he was informally made an offer by Senior Sergeant Jansen that he change from the flex time system and move onto a roster which provided for shifts of eight hours and 45 minutes, effectively giving him a four day week. 3. The applicant claimed that he accepted the offer of a four day roster and began working the new roster after the completion of the flex time period which ended on 15 November 2015. As he was, from that point in time, working a roster comprising four shifts per week of eight hours and 45 minutes, the applicant did not believe that he needed to seek permission from a supervisor to work beyond seven hours a day. 4. Sergeant Kuhner stated that he did not believe that the applicant was offered a four day week roster of 8.75 hour days, but did recall that there had been discussion between Senior Sergeant Jansen about the applicant being offered to work on a roster. Sergeant Kuhner further stated that, in respect of the applicant, a proposed roster would have been an eight hour day, nine day fortnight roster, as this was the available roster for his role. 5. It appears that, by 23 November 2015, Senior Sergeant Jansen had become aware that the applicant had been working shifts of eight hours and 45 minutes the previous week. Senior Sergeant sent the following email to Sergeant O'Brien: Please ensure John Fleming adheres to the direction to seek permission before exceeding his 7 hour shift. He has been working 8.75 hour days contrary to the direction all last week, as well as leaving on Friday without entering his finish time. This effectively puts him on a 4 day week similar to what the CSO 5/6 are on, however they perform on call duties and Fleming does not, If he continues to have difficulty managing his flextime appropriately he will be put on standard hours 8am to 3.30pm. Please inform him of this. If he wants to work a nine day fortnight similar to SARA he can opt to go on roster, otherwise I expect he will be working 7 hour shifts five days per week. 1. This email constitutes a very low key response from Senior Sergeant Jansen to what would later become a sustained allegation of misconduct by the applicant. Apart from foreshadowing that the applicant would be placed on standard hours, 8am to 3.30pm (with a 30 minute unpaid lunch break), if he continued to have difficulty managing his flex time appropriately, it does not appear that any other disciplinary action against the applicant over his alleged misconduct was being contemplated by Senior Sergeant Jansen at this time. 2. The applicant was cross-examined about this allegation but maintained that he believed that, as at 17 November 2015, he was working on a four day week roster with shifts of eight hours and 45 minutes duration. As a consequence, he did not believe that he was required to seek approval from a supervisor to work beyond seven hours a day. There was nothing in the applicant's demeanour in the witness box to suggest that his belief in this regard was not genuinely held. 3. I am of the view that the failure of the applicant to seek approval to work beyond seven hours on 17, 18 and 19 November 2015 was not misconduct, but was the product of a genuinely held, but mistaken, belief that, at the time, he was not working under the flex time system, but was on a four day week roster. The subdued response of Senior Sergeant Jansen in his email to Sergeant O'Brien reflects the low level of seriousness with which this matter was regarded at the time. 4. This is not a matter which could, on any basis, justify the dismissal of the applicant. Allegation (2) – On 23 and 24 November 2015 you yelled and swore at Sergeant O'Brien in an aggressive manner. 1. Sergeant O'Brien gave evidence that the following exchange occurred between himself and the applicant at around 4.00pm on 23 November 2015: Applicant: Can I work extra hours on flex this afternoon to finish this job? Sgt O'Brien: It's not an urgent job. You can pick it up in the morning. Unless there is an urgent job you will not be working more than 7 hours per day. And even then you can only work more than 7 hours with supervisor's permission. You don't necessarily need permission from me as there's 3 other supervisors that are around if I'm not around at a particular time and you know the Imaging Co-Ordinator phone number. 1. Sergeant O" Brien then gave the following evidence: As I had allocated the job to Mr Fleming I knew that the job was not urgent and could be continued in the morning. On that basis I determined that working additional hours was not required. This was consistent with the discussions I had previously had with him and other staff members when deciding whether to approve additional hours of work. 1. It should be noted at the outset that Sergeant O'Brien's rejection of the applicant's request to work extra hours on this day was based upon a misunderstanding of the entitlement under the Award for an employee, such as the applicant, to work flex time. It should also be noted that Sergeant O'Brien's understanding that the work to be performed needed to be urgent, is inconsistent with the understanding of Sergeant Kuhner and that of Detective Chief Inspector Hoffman set out at paragraphs 51-53 above. 2. According to Sergeant O'Brien, when the applicant's request to work additional hours was refused, his facial expression changed, he looked very angry, he began staring at Sergeant O'Brien with clenched teeth while breathing heavily, and then the following exchange occurred with the applicant raising his voice and shouting: Applicant: I'll never be able to take a flex day off again because I'll be unable to accrue flex hours! Sgt O'Brien: This is how the flex system works. If there is no urgent work, then there is no need for you to do more hours. Applicant: You wouldn't know how the system works. You're just a lazy fucking copper like the rest of them. Everyone on that side of the room is a bunch of lazy fucking bludgers. 1. Sergeant O'Brien claimed that he did not raise his voice or shout at the applicant. He gave evidence that the applicant continued to the following effect: Applicant: I hate all police! It's no wonder that everyone hates police! Police are stupid and lazy. The others can work flex time. I'm being picked on and discriminated against. and Applicant: Can I stay? I'm going to write an email to Inspector Hoffman. Sgt O'Brien: Don't go outside the chain of command. 1. The applicant did not deny using the language attributed to him by Sergeant O'Brien during this incident, but claimed that both of them were shouting at each other and may have also sworn at each other in the heat of the argument. 2. Sergeant O'Brien gave the applicant permission to stay back at work and send an email to Detective Chief Inspector Hoffman. Sergeant O'Brien then sent the following email to Senior Sergeant Jansen: * John claimed he did extra hours last week because he thought he was on a roster and not flex hours as of the start of last week. He claimed that Mike Sara had told him that he was on a roster now. Obviously no supervisor told him he was on a roster, and when questioned about that John said that no supervisor had told him that he was on a roster. * I then told John (again) that unless there was a truly urgent job he would not be working more than his seven hour day. And even then only with direct supervisor permission. And in reality there is rarely, if ever, a need for John to do more hours. His jobs are, for the vast majority, not needed the next day and are only needed for court before the required date. * At that point John cracked, put his rage face on, and began yelling that he'd never be able to take a flex day off again because he would be unable to accrue flex hours. I told him that was how the flex system worked. If there was no urgent work, then there is no need for him to do more hours. This is the point that he refused to accept or understand. * His argument seemed to be that there is work for him to do. I told him that would be for a supervisor to decide, on a daily basis if need be. He then claimed to be a victim of discrimination because Dallas, Warren and Ron are all on Flex and are allowed to accrue hours and take a flex day when it suits them. I explained that all the people on Flex perform different duties in the office, and are subject to different operational requirements. John thinks he's entitled to accrue flex hours each day on the basis that there is work that needs to be done. Which there is not. * John was unnecesarily abusive toward me, criticising all "lazy" and "stupid" police in the office in general, ranting and swearing. Gavin and Dallas were the only ones here at the time. * I repeatedly told him not to go outside the chain of command, which he ignored, and after John sent his angry email to Mr Hoffman, he left. 1. A number of observations may be immediately made about this email of Sergeant O'Brien. Firstly, the refusal by Sergeant O'Brien to allow the applicant to work additional hours, to which the applicant reacted, was based upon Sergeant O'Brien's misunderstanding of how the flex time provisions in the Award are intended to operate. Based on Sergeant O'Brien's understanding, the applicant would rarely, if ever, be able to accrue flex time, which is clearly contrary to the intent of the Award provision. Secondly, nothing in this email discloses any genuine concern on the part of Sergeant O'Brien about his personal safety being threatened by the applicant. Thirdly, it appears that Sergeant O'Brien was more concerned about the applicant going outside the chain of command, and communicating directly with Detective Chief Inspector Hoffman, than he was with the behaviour of the applicant. 2. This incident between the applicant and Sergeant O'Brien was witnessed by another civilian employee in the FIS, Dallas Maher. Mr Maher gave evidence that both men had raised their voices during this argument but, at no point, did Mr Maher have any concerns that the applicant would become violent because he had never seen the applicant violent. Mr Maher had only ever noticed the applicant to become frustrated and to raise his voice when it concerned his flex time requests, or other perceived mistreatment or inequality. 3. In an email to Senior Sergeant Jansen dated 3 December 2015, Mr Maher stated, in relation to the incident of 23 November 2015, that the applicant said to Sergeant O'Brien "you wouldn't know how it works, you're just a fucking lazy copper like the rest of them" and "everyone on that half of the room is a bunch of fucking bludgers". Mr Maher also stated that Sergeant O'Brien was allowing the applicant to speak freely at that point and just replied with "John, stop acting like a pork chop". Mr Maher further stated in this email that Sergeant O'Brien remained as calm as could be expected and acted professionally in the face of the insults. 4. On 24 November 2015, the applicant again approached Sergeant O'Brien and asked to work flex time that afternoon. Sergeant O'Brien replied "No, John". When the applicant asked "Why not?" a number of times, Sergeant O'Brien did not respond to him. According to Sergeant O'Brien, the applicant called him a "dickhead" and said words to the effect "It's no wonder everyone hates police". Again, the applicant did not deny using the language attributed to him by Sergeant O'Brien. 5. As a consequence of the incidents on 23 and 24 November 2015, the applicant was placed on a Conduct Management Plan, part of which provided that the applicant was to work fixed hours from 8.30am to 4.00pm with a half hour unpaid lunch break. In a letter to the applicant dated 30 November 2015, Senior Sergeant Jansen stated: I wish to advise you that I am of the opinion that you have not been conducting yourself in a satisfactory manner in the workplace. As a result of your failure to comply with numerous directions to work a maximum of 7 hours per day, and to seek approval from a supervisor before working additional hours, and several inappropriate outbursts and rude and disrespectful interactions with your colleagues I have decided to place you on a conduct management plan for three months excluding any period/s of leave. 1. In a subsequent email of 4 December 2015 to Senior Sergeant Jansen, Sergeant O'Brien expressed his "genuine concerns" for his own safety, and that of his police colleagues in the office, following the incident of 23 November 2015 and "a more minor but still noteworthy follow-on incident the next day". 2. The respondent characterised the applicant's conduct, which is the subject of this allegation, as disrespectful conduct towards his supervisor and the NSW Police Force. I agree with that characterisation. 3. Although not part of this allegation of misconduct, the respondent has characterised the applicant's email to Detective Chief Inspector Hoffman on 23 November 2015, as going outside the chain of command and an "admitted instance of insubordination". This characterisation is erroneous. The applicant did admit that he went outside the chain of command but did not admit that this constituted an instance of insubordination. 4. The issue that sparked the altercation between the applicant and Sergeant O'Brien on 23 November 2015 was the latter's refusal to grant permission to the applicant to work additional hours because the work was not urgent. The applicant disagreed that additional hours could only be worked if the work to be done was urgent. 5. The applicant was aware that the next person up the chain of command, Senior Sergeant Jansen, adopted the same approach to the flex time issue as did Sergeant O'Brien. On this basis, the applicant made an approach directly to Detective Chief Inspector Hoffman. I note that, when the applicant approached Detective Chief Inspector Hoffman at the SPC on 2 December 2015, the Detective Chief Inspector did not refuse to meet with him and discuss his grievance about not being permitted to work flex time, because the applicant had not gone through Senior Sergeant Jansen first. The issue of bypassing Senior Sergeant Jansen was not raised as an allegation of misconduct against the applicant. The characterisation of it now as an "admitted instance of insubordination" does not advance the position of the respondent in these proceedings. 6. There can be no doubt that the behaviour of the applicant towards Sergeant O'Brien on 23 and 24 November 2015 constituted misconduct. The fact that the misconduct of 23 November was precipitated by Sergeant O'Brien's misconception that the accrual of flex time could only occur when there was urgent work to be done, does not excuse the applicant's behaviour. The fact that the misconduct of 24 November was precipitated by Sergeant O'Brien ignoring the applicant's legitimate requests for an explanation as to why he was not being permitted to work flex time that day, does not excuse his behaviour. The applicant's failure to apologise to Sergeant O'Brien compounds this misconduct. Whether or not this misconduct is sufficiently serious, when considered together with the other matters relied upon by the respondent, to justify the dismissal of the applicant, is discussed later in these reasons for decision. Allegation (7) – You were absent from your normal workplace on 01 and 02 December 2015 without obtaining the necessary approval. 1. The applicant gave the following evidence: When I returned to work on 30 November 2015, I was placed on a Conduct Management Plan ("CMP")… I said to Jansen that I did not want to discuss any matters with him until after I had met with Hoffman on the following day. Jansen said that Hoffman was not due back until 2 December 2015, however, I told him that I had corresponded with Hoffman by email and that he told me he was away until 1 December. Jansen then approved my attendance at the SPC to meet with Hoffman. In the meantime, I commenced the CMP. 1. The respondent led no direct evidence to contradict the applicant's assertion that Senior Sergeant Jansen had approved his attendance at the SPC on 1 December 2015, and he was not challenged on this assertion during cross-examination. 2. As set out at paragraph 8 above, in final addresses counsel for the respondent disavowed any reliance upon allegation (4), that the applicant failed to obtain the necessary approval to work at the SPC on 1 and 2 December 2015. Surprisingly however, counsel maintained reliance upon allegation (7) which appears to cover the same territory as allegation (4). In relation to allegation (7), counsel stated: I will be saying something about that, yes. 1. What counsel did have to say about this allegation was as follows: BULUT: 30 November. That was his first day back in the office because after 24th he took a couple of days of stress leave, there was probably a weekend in there as well so his first day back in the office was 30th and on his first day back in the office he's put on a conduct management plan .His evidence in cross-examination was that's the first time that he spoke to Senior Sergeant Jansen about that. So following that of course we have him going off to attempt to meet DCI Hoffman on 1 December and I say that that was - it was a strange position that he took because he says "I have a meeting" or "I have an appointment" I'm not sure how much turns on that. But the email correspondence Mr Reitano took you to, nowhere in there does it say what time for example. There's just this idea that something will happen on the 1st full stop. I accept and this is why I don't raise the issue of dishonesty, that on one view it could be said that Mr Fleming had an honest belief that it was an appointment or a meeting on 1 December. Okay let's say I concede that point. The issue that I take is that I then put to him in cross-examination that on 30 November when Senior Sergeant Jansen meets with him and they go through the conduct management plan, Senior Sergeant Jansen tells him "DCI Hoffman isn't back until 2 December" and the response is Mr Fleming doesn't accept that. Mr Fleming says "I'm going to the SPC tomorrow I have an appointment". But he's told by not only his supervisor but once removed, so two above, someone that reports directly to DCI Hoffman, who would have knowledge about DCI Hoffman's return from leave. He's told by Senior Sergeant Jansen "Well he's not back tomorrow he's back the very next day on the 2nd". But he flies in the face of that and says "No I'm going to the SPC anyway". COMMISSIONER: Where is the reference to that in the evidence? BULUT: It's definitely on transcript in cross-examination but I'll just have a look to see whether it's also in his - yes so that's in para 48 of exhibit 1 on top of the 8th page and I quote: "Jansen said that Hoffman was not due back until 2 December 2015 however I told him I had corresponded with Hoffman by email, that he told me he was away until 1 December". COMMISSIONER: What do you say about the next sentence? BULUT: Well I don't say anything about that because I don't have Senior Sergeant Jansen here to tell me what he said to him so I don't make a submission that he breached a direction on that point but I think that it goes to insubordination that he's told by his supervisor once removed that his belief is incorrect and he says "In any event I'm doing it". COMMISSIONER: Then if he then says "Jansen then approved my attendance at SPC to meet with Hoffman" and there's no evidence to the contrary. How is that insubordination? BULUT: Well what we do have is his disrespect for his supervisors, that is arguing with his supervisor about DCI Hoffman's return in circumstances where he's told "you are mistaken" and his - sorry? COMMISSIONER: I didn't say anything. BULUT: Sorry, and so we have him arguing in essence with Senior Sergeant Jansen who is in a much better position to know precisely where DCI Hoffman is and when he's returning from leave, given that he reports directly to him. And so it just lends weight - it's not another instance of insubordination but it lends weight to the attitude that Mr Fleming has to his superiors and to the chain of command. That's simply the extent of my submission on that point. 1. The allegation that the applicant was absent from his normal workplace on 1 and 2 December 2015, without obtaining the necessary approval, cannot be sustained on the evidence presented by the respondent in these proceedings. 2. The submission of the respondent, to the effect that the applicant's failure to accept Senior Sergeant Jansen's advice as to the whereabouts of Detective Chief Inspector Hoffman on 1 December 2015, constituted an act of insubordination on the part of the applicant, is without substance. It was not insubordination for the applicant to hold to his view that he was to meet Detective Chief Inspector Hoffman on 1 December, despite Senior Sergeant Jansen's advice that the Detective Chief Inspector would not be returning to work until 2 December. This is especially so, given the unchallenged evidence of the applicant that Senior Sergeant Jansen ultimately approved his attendance at the SPC on 1 December 2015. Allegation (8) – You rode your bicycle in a reckless manner on NSW Police Force property between January and December 2015, endangering others and being rude and disrespectful, following numerous discussions and warnings against such behaviour. 1. This allegation, which was found to be sustained and relied upon to support the applicant's dismissal, and also relied upon during these proceedings, was said to be another "instance of insubordination" by the applicant. Counsel for the respondent stated: The conduct was relatively minor on the scale of things but it occurred numerous times and occurred over a prolonged period and other people were involved and I will take you to the evidence. 1. The evidence to which the Commission was taken, was the following: (a) An email dated 7 October 2015, from Acting Senior Sergeant Victor Chin, Branch Liaison Officer, to Senior Sergeant Jansen in the following terms: Hello Arnold I have received a number of complaints from staff including security officers from the front gate about the speed that John Fleming rides in and out of the premises on his bicycle. John was spoken to by your sergeants about a week ago regarding his speed, but was seen yesterday riding out at high speed. Can you do something to get him to obey the speed limit in the driveway and to ride at a safe speed on these premises. (b) An email dated 8 December 2015, from Administrative Officer, Maria Paludi, to Sergeant O'Brien in the following terms: Hello Lincoln This morning at 8:00am I swiped my card at the front post which opens the gate to the entrance to the building. John past me really fast on his bicycle so close that it scared me, while doing that he yelled something which was not very clear like "move or out of my way". Well after that he rode his bike so fast to the second gate which was opened as there was a crime scene car getting out of the back parking lot, he nearly ran into it. The Crime Scene Officer was from Western Sydney Crime Scene who was driving a marked car. Lincoln I really don't want him to be in a big trouble but just a talking to will do. This email had been requested from Ms Paludi by Sergeant O'Brien, who had been informed of the incident by Acting Senior Sergeant Chin. (c) Evidence from Sergeant O'Brien that he was approached, on at least two occasions, by Acting Senior Sergeant Chin about the dangerous manner in which the applicant rode his bicycle. Sergeant O'Brien claimed that, in or around August 2015, he spoke to the applicant about a complaint concerning the applicant's bike riding on the driveway. He asked the applicant to please ride sensibly and within the speed limit. Sergeant O'Brien also gave evidence that, on 23 December 2015, he saw the applicant go through a red light on his bicycle. This did not occur on NSW Police Force property. Sergeant O'Brien reported the incident to Senior Sergeant Jansen who, in turn, reported it to Detective Chief Inspector Hoffman. Ultimately, the applicant was issued with a TIN by Blacktown police following the provision to them of witness statements by Sergeant O'Brien and one other officer. (d) Evidence from Sergeant Barnes that, on at least two occasions in around 2014 or 2015, he saw the applicant riding his bicycle in a dangerous manner, once on police property and the other occasion on a public road, when the applicant rode through a red light and cross the intersection across six lanes of traffic. (e) Evidence from Sergeant Kuhner that he had been approached by Acting Senior Sergeant Chin in October 2015, about the applicant's bicycle riding. Sergeant Kuhner spoke to the applicant about the matter. This is referred to in the email from Acting Senior Sergeant Chin to Senior Sergeant Jansen of 7 October 2015. 1. Neither Acting Senior Sergeant Chin nor Ms Paludi was called by the respondent to give evidence. 2. The applicant claimed that he had been spoken to only twice about his bicycle riding, once by Sergeant Kuhner in early October 2015 and once by Sergeant Barnes in late December 2015 or early January 2016. In relation to the incident involving Ms Paludi, the applicant stated that he had called out to warn her that he was behind her, as the swipe point is about eight metres away from the gate. He said he hadn't rung his bell because it didn't work and, even if it did, the noise from the adjacent M4 traffic would have made it difficult to hear. 3. In relation to the TIN for going through a red light, the applicant rejected the respondent's claim that this incident brought the NSW Police Force into disrepute. At the time of the incident, he was not at work, not on police property, not using a police vehicle and was not wearing police attire. He did not cause an accident. 4. I reject the description of "specious", given by counsel for the applicant to this allegation. The applicant's supervisors had an obligation to raise with him concerns raised by other employees about the applicant riding his bicycle at unsafe speeds on police property. 5. On the other hand, I disagree with the respondent's characterisation of the applicant's conduct in this regard as "another clear example of Mr Fleming's insubordination, and his general lack of respect for the Sergeants who supervise him". The evidence, as it stands, simply does not permit such a finding to be made against the applicant. 6. This is not a matter which, in my opinion, supports the decision to dismiss the applicant. I agree with the submission of counsel for the applicant that other disciplinary measures could have been utilised by the respondent to address this issue. Most obviously, the applicant could have been warned that, if he persisted in riding his bicycle at unsafe speeds, he would be directed not to bring his bicycle onto police property in the future. 7. The dismissal of a long serving employee, such as the applicant, based on this allegation alone, would have been manifestly unfair. Allegation (9) – On 07 January 2016 you swore and were abusive and intimidating towards Sergeant Barnes. 1. Sergeant Barnes gave evidence that, at approximately 9.15am on 7 January 2016, he overheard the applicant on a telephone call to advise the other party that he, the applicant, could come to Redfern to assist in getting some negatives scanned. Sergeant Barnes, who had been nominated as the applicant's "mentor" in the Conduct Management Plan of 30 November 2015, advised the applicant that he was not allowed to leave the office. The applicant responded "I did not know that. Why can't I leave the office?". Sergeant Barnes then explained that the applicant was not allowed to leave the office without supervision. I note that this restriction on the applicant's movements was not one of the "strategies" identified in the Conduct Management Plan, and there is no evidence that he was advised of it prior to this conversation with Sergeant Barnes. 2. According to Sergeant Barnes, the applicant then said "I am only trying to help her". Sergeant Barnes then stood up and returned to his desk. He heard the applicant say "This is fucking ridiculous". Sergeant Barnes responded with "Attitude John". The applicant then walked over to where Sergeant Barnes was sitting and, in a raised voice while waving his arms at the level of Sergeant Barnes' head, said "Attitude. I am stressed". Sergeant Barnes formed the view that the applicant looked angry as he did this. The applicant then turned to walk away and Sergeant Barnes said "John, let's take this conversation outside". Sergeant Barnes claimed that he did this so that they could carry on their conversation in private. 3. According to Sergeant Barnes, he stood leaning against a wall with the applicant facing him approximately 50 centimetres away. Sergeant Barnes formed the view that the applicant had an aggressive look on his face. The applicant then said words to the effect "I don't fucking understand this. I am only trying to help this officer. That's it I am going off on stress. I am stressed". Sergeant Barnes tried to calm the applicant down. As the applicant turned to walk back inside, Sergeant Barnes said "John. Go inside. Don't talk to anyone and go home then". Sergeant Barnes claimed that, during this exchange, he did not raise his voice and his behaviour remained calm and approachable. 4. It was Sergeant Barnes' evidence that the applicant swore at him and that he found the applicant's behaviour to be intimidating. In a note prepared by Sergeant Barnes shortly after the incident, he stated that the applicant had an expression of anger and, later, had an aggressive look on his face. However, Sergeant Barnes did not, in this note, refer to the fact that he felt intimidated by the applicant during this incident. 5. The applicant agreed that he did swear during this exchange but denied swearing at or abusing or intimidating Sergeant Barnes. 6. Warren Gannon, who is employed as an Imaging Officer in the FIS, witnessed that part of this incident which occurred inside the office. He gave the following evidence: On 7 January 2016, I was present in the office when Fleming asked Barnes if he could go to a film lab to do some scanning. Barnes said he could not go and then ensued a lengthy conversation between them about the reasons why Fleming could not go. Barnes became quite aggressive in his demeanour, and at one point, he got up from his desk and went and stood over Fleming, who at all times remained professional in his language and demeanour. At one stage, Fleming and Barnes went outside to continue their discussion but they came back in after a short time. I did not notice any aggression in Fleming's demeanour when they came back in. At no time did I hear Fleming swear at or abuse Barnes during their conversation nor did he act in any way that could be considered as intimidating. 1. As with allegation (2), the respondent sought to characterise the applicant's behaviour on this occasion as disrespectful conduct towards a supervisor. I agree with this characterisation. However, I also accept the evidence of the applicant and Mr Gannon to the effect that Sergeant Barnes' demeanour during this incident was confrontational and aggressive. 2. I accept that the behaviour of the applicant on this occasion constituted misconduct on his part. However, the seriousness of this misconduct was at a much lower level than that which occurred on 23 and 24 November 2015, involving Sergeant O'Brien, which resulted in the applicant being placed on a Conduct Management Plan for three months.

The dismissal of the applicant 1. According to the applicant, in about the second week of January 2016, he was called into a meeting and, in the presence of other team leaders, Senior Sergeant Jansen said words to the following effect: Your conduct management plan is finished. You can go on flextime. You don't have to ask permission to work flex, but there has to be a team leader present for you to work back. None of the witnesses called by the respondent disputed that this conversation did, in fact, occur. 1. On or about 15 January 2016, the applicant received the letter from Detective Chief Superintendent Rolph setting out the nine allegations of misconduct by him to which the applicant provided a detailed written response. 2. On 11 March 2016, the applicant received the letter from Detective Chief Superintendent Rolph which contained the finding that all nine allegations of misconduct were proven. On or about 16 March 2016, the applicant provided Detective Chief Superintendent Rolph with a further detailed written response. 3. The applicant continued to work flex time until 6 April 2016, when he was called into a meeting with Senior Sergeant Jansen and Sergeant Kuhner and told that he was being placed on an Interim Risk Management Plan because of the allegations against him, and that he would not be able to work flex time. 4. On 13 May 2016, the applicant met with Detective Chief Superintendent Rolph in relation to the misconduct allegations against him. 5. By letter dated 9 June 2016, Detective Chief Superintendent Rolph terminated the employment of the applicant with effect from 15 July 2016.

Was the dismissal of the applicant harsh unreasonable or unjust? 1. At the time of his dismissal, the applicant had in excess of 16 years' continuous service with the NSW Police Force. His service had not been without incident. The respondent produced some evidence of at least two occasions in around 2007 or 2008 when it was alleged that the applicant was witnessed by Sergeant O'Brien to be "raising his voice and screaming" at another civilian employee because the applicant was of the view that her radio music was too loud. The applicant himself gave evidence of a number of clashes he had with Senior Sergeant Jansen in 2009 over issues such as tea breaks and CAD work. The applicant also admitted that, in 2009, he raised his voice at (then) Senior Constable O'Brien when he asked the Senior Constable for help on an urgent job. According to the applicant, Senior Constable O'Brien was building a personal computer (a personal job) whilst at work, and he raised his voice and abused the applicant and told him to go away, so the applicant shouted back at him. Sergeant O'Brien denied that he raised his voice or abused the applicant during this incident. 2. On 8 May 2009, the applicant was placed on a Remedial Performance Plan. One of the reasons for being placed on this plan was the applicant's failure to follow directions in relation to his leave accruals. 3. Of the five misconduct allegations relied upon by the respondent during these proceedings to justify the dismissal of the applicant, in my opinion only allegations (2) and (9) are sufficiently serious to warrant consideration in the determination of whether or not the dismissal of the applicant was unfair. These allegations concerned the altercations between the applicant and Sergeant O'Brien on 23 and 24 November 2015 and the altercation between the applicant and Sergeant Barnes on 7 January 2016. 4. I accept that a recurring source of frustration for the applicant was the approach adopted by Senior Sergeant Jansen and Sergeants O'Brien and Barnes in refusing permission for the applicant to work additional hours unless the work to be performed was urgent. I find that there is no basis in the Award for the adoption of such a restrictive approach, which was also inconsistent with the approach adopted by Detective Chief Inspector Hoffman and Sergeant Kuhner. Nevertheless, the applicant's frustration over this issue does not excuse his abusive conduct towards his supervisors. 5. On 23 November 2015, Sergeant O'Brien refused the applicant's request to work additional hours because, in the Sergeant's opinion, the work to be done by the applicant was not urgent. Taking Sergeant O'Brien's evidence at it's highest, the applicant then: * began staring at Sergeant O'Brien with clenched teeth while breathing heavily; * complained that he will never be able to take a flex day off again; * told Sergeant O'Brien that he would not know how the flex time system works; * said "You're just a lazy fucking copper like the rest of them. Everyone on that side of the room is a bunch of lazy fucking bludgers"; and * said "I hate all police! It's no wonder that everyone hates police! Police are stupid and lazy. The others can work flex time. I'm being picked on and discriminated against". 1. The applicant did not deny using the language as alleged but claimed that both he and Sergeant O'Brien were shouting and possibly swearing at each other. Mr Maher confirmed that both men raised their voices during this argument. 2. There can be no doubt that calling Sergeant O'Brien a "lazy fucking copper", and describing other police officers in the FIS as "a bunch of lazy fucking bludgers" constituted misconduct on the part of the applicant. There can be no doubt that saying that he hates all police and that everyone hates police and that police are "stupid and lazy", also constituted misconduct on the part of the applicant. 3. However, I accept that this altercation was precipitated by Sergeant O'Brien taking an unnecessarily restrictive approach to granting the applicant permission to work additional hours. I also accept that both men raised their voices at each other during this argument. Whilst not excusing the applicant's misconduct, these factors do give some perspective or context to it. Perhaps the most compelling evidence of the impact which this incident had on Sergeant O'Brien is to be found in the email he sent to Senior Sergeant Jansen shortly after the incident occurred. In that email, Sergeant O'Brien referred to the applicant as having "put his rage face on", as yelling and being unnecessarily abusive and criticising all "lazy" and "stupid" police. There is nothing in this email to suggest that Sergeant O'Brien, at any time during this incident, felt threatened or in fear for his personal safety. It was not until 11 days later, on 4 December, and after what Sergeant O'Brien described as "a more minor but still noteworthy follow-on incident the next day" being 24 November, that he emailed Senior Sergeant Jansen and expressed concern for his own safety and that of his police colleagues, arising from the behaviour of the applicant on 23 November 2015. 4. The incident of 24 November 2015, involved the applicant calling Sergeant O'Brien a "dickhead" and saying "It's no wonder everyone hates police". This was said after the applicant's repeated requests for a reason as to why he had been refused permission to work additional hours on that day, were repeatedly ignored by Sergeant O'Brien. Nevertheless, I accept that this behaviour of the applicant constituted misconduct. 5. As I have already stated, the behaviour of the applicant towards Sergeant O'Brien on 23 and 24 November 2015 constituted misconduct by the applicant. This misconduct cannot be excused on the basis of the frustration of the applicant arising from the restrictive approach of Sergeant O'Brien to granting permission to the applicant to work additional hours. However, in my opinion, it was not misconduct of sufficient seriousness to justify the dismissal of an employee with 16 years' service, even accepting that the applicant's record of service had been less than exemplary. 6. There can be no doubt that some form of disciplinary action against the applicant was warranted and that is what occurred. On 30 November 2015, Senior Sergeant Jansen placed the applicant on a Conduct Management Plan for three months, during which the applicant was not permitted to work flex time. However, Senior Sergeant Jansen advised the applicant, in about the second week of January 2016, that the Conduct Management Plan was finished and that he was able to resume working flex time. 7. In relation to the events of 1 and 2 December 2015, the respondent, during these proceedings, maintained reliance only upon allegation (7), namely that the applicant was absent from his normal workplace without obtaining the necessary approval. As already indicated, it is my determination that this allegation of misconduct cannot be sustained on the evidence presented by the respondent in these proceedings. 8. Further, it is my determination that allegation (8), involving the applicant's bicycle riding on police property, is not, to the extent that it has been made out on the evidence, a matter which justifies the dismissal, even when considered together with the other matters relied upon by the respondent. 9. This leaves for consideration allegation (9) which relates to the incident involving the applicant and Sergeant Barnes on 7 January 2016. 10. There is no dispute that the applicant swore during this incident. However, the evidence falls short of establishing that the applicant swore at Sergeant Barnes. Further, whilst it is more likely than not that the applicant was visibly angry during this incident, I do not accept that the evidence establishes that the applicant acted in an intimidating manner towards Sergeant Barnes. 11. Nevertheless, an angry display of dissent in front of a supervisor, accompanied by swearing, does constitute misconduct and a lack of respect for the supervisor. However, had the applicant been forewarned that he was prohibited from leaving the office without supervision, and had the reason for this restriction on his movements been explained to him, as should have happened, this incident may have been avoided altogether. 12. The respondent relied upon the decisions in a number of other cases, both state and federal, involving swearing and/or acts of aggression in the workplace, in support of the submission that the dismissal of the applicant, in the present case, was not unfair. As is to be expected, the decision in each of those matters turned upon the particular facts of each case, which were different from each case cited, and different from the facts of this case. I found those decisions of little assistance in determining the outcome of this matter. 13. The incidents of 23 and 24 November 2015 and of 7 January 2016, each involve misconduct on the part of the applicant. It was entirely inappropriate for an employee in the position of the applicant, to lose his temper with his supervisors in the manner in which the applicant did. Absent any mitigating factors, such misconduct might be regarded as sufficiently serious such as to warrant the termination of the applicant's employment. 14. However, in this case there are a number of mitigating factors which, when balanced against the seriousness of his misconduct, do, in my opinion, render the dismissal of the applicant harsh, unreasonable and unjust. Those factors are: 1. The applicant's length of service, being in excess of 16 years. Whist the respondent submits that there have been issues with the applicant's conduct and performance in the past, the evidence does not establish that those matters were of a level of seriousness such as to entirely erase the mitigating effect of the applicant's long period of service. 2. The incident on 23 November 2015 with Sergeant O'Brien was precipitated by the Sergeant's misunderstanding of the flex leave provisions in the Award. There is no warrant in the Award to restrict the working of additional hours to only those situations which involved urgent work. Further, whilst this was the approach of Senior Sergeant Jansen and Sergeants O'Brien and Barnes, it was not the approach of Detective Chief Inspector Hoffman and Sergeant Kuhner. On this issue, counsel for the respondent made the following submission: There is no hard and fast rule as to what is convenient to New South Wales Police Force. Unsurprisingly, different sergeants give different evidence. Some spoke of urgency being one of the criteria, and other criteria applies, such as are there supervisors available, but urgency rises above it. I reject this submission. There is no basis in the Award for the restriction of flex time to situations where the work to be done is regarded as urgent. The suggestion that it is "convenient" to the NSW Police Force to restrict the applicant's ability to work additional hours to situations involving urgent work, is contrary to the clear intendment of the Award. Further, acceptance of the appropriateness of different supervisors having different criteria for granting employees permission to work additional hours, is inherently unfair and likely to cause a level of frustration and resentment amongst employees, as occurred in this case. Whilst this doesn't excuse the conduct of the applicant on 23 November 2015, it is a mitigating factor which is appropriate to be weighed in the balance. 1. In relation to the incident of 24 November 2015, regardless of whether or not Sergeant O'Brien had valid reasons for not wanting to engage with the applicant in relation to his request to work additional hours on that day, by repeatedly ignoring the applicant's inquiry as to why his request was denied, Sergeant O'Brien fuelled the frustration being felt by the applicant. According to the case mounted by the respondent, the applicant was repeatedly told that he needed a supervisor's permission to work additional hours. He sought permission for this on this occasion but, when he asked why permission was refused as he was entitled to ask, he was ignored. Whilst this does not excuse the applicant calling Sergeant O'Brien a "dickhead" and remarking about everyone hating police, it is another mitigating factor which is appropriate to be weighed in the balance. 2. With respect to the incident of 7 January 2016 with Sergeant Barnes, it is understandable that the applicant would react negatively to being told, after he had arranged to meet another officer off site, that he was not permitted to leave the office without supervision. He should have been advised of this restriction on his movements, and the reasons for it, well before 7 January 2016, given that he had been placed on the Conduct Management Plan on 30 November 2015. Whilst this does not excuse the applicant's reaction on this occasion, it is another mitigating factor which is appropriate to be weighed in the balance. 3. The applicant's age, 58 years, and the specialist nature of his skills, will make it difficult for him to find suitable alternative employment. This is an appropriate matter to weigh in the balance on the question of harshness. 1. It is strongly arguable that, given the misconduct of the applicant, his dismissal was neither unjust nor unreasonable. However, after weighing up those mitigating factors discussed immediately above against the seriousness of the of the applicant's misconduct, it is my determination that the dismissal of the applicant was, in all the circumstances, harsh. I coming to this determination, I have had regard to the approach of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 1. The remaining matter for consideration is the question of remedy.

Is reinstatement of the applicant impracticable? 1. Reinstatement is the primary remedy under the Industrial Relations Act 1996 for applicants who are found to have been unfairly dismissed. Alternate remedies are only ordered in cases where the Commission considers that it would be impracticable to reinstate the applicant. 2. The respondent opposed reinstatement of the applicant on the ground of impracticability and submitted as follows: Given Mr Fleming's conduct towards the Sergeants in that group, and the views that Mr Fleming expressed regarding the police officers he would be required to work with, including by referring to those sworn officers as a "bunch of fucking bludgers", his employment in that section is impracticable. This is particularly so in light of the lack of contrition and lack of insight displayed by Mr Fleming. The evidence shows that Mr Fleming's conduct has caused a divide in the team with his "us and them" attitude towards his sworn officer superiors. If Mr Fleming believes his conduct was "justified", as he does, there is no reason to believe that the conduct will not continue. This is especially so when one had regard to Mr Fleming's, not only lack of contrition, but continuing belief that his poor behaviours either have no consequence or are consequently justified by his own indignation which flows from being self-righteous. 1. The respondent relied upon the evidence of Sergeants Kuhner, O'Brien and Barnes, each of whom deposed that he had concerns that the applicant, if reinstated, would continue to fail to follow directions of his supervisor. They each expressed concern as to the applicant's lack of contrition and lack of insight into his conduct. Reliance was also placed upon the opinion of Dr Patu, Senior Sergeant Jansen's treating doctor, who wrote in a report dated 16 March 2017: It is also my opinion after reviewing and taking the history from Senior Sargeant Jansen, that his recovery and prognosis would be negatively impacted if Mr John Fleming were to return to the workplace at which Senior Sargeant Jansen may also work. 1. In my opinion, the concerns of Sergeants Kuhner, O'Brien and Barnes as to the applicant not following directions of his supervisors if he were to be reinstated, are largely misplaced. Of the allegations of misconduct which the respondent continued to rely upon during these proceedings, only allegation (1) and, possibly, allegations (7) and (8), involve an alleged failure on the part of the applicant to follow a direction of a supervisor. 2. I have already determined that allegations (1) and (7) are not made out on the evidence before the Commission. Allegation (8) does not involve the applicant failing to follow a direction of a supervisor. At worst, the applicant failed to heed the advice of his supervisors to ride his bicycle at a slower speed on police property. 3. In relation to the medical opinion of Dr Patu, the basis upon which the doctor opined that Senior Sergeant Jansen's recovery and prognosis would be negatively impacted if the applicant were to return to the workplace, is unclear. It would be unfair to the applicant to base a finding of impracticability of reinstatement on the opinion of Dr Patu. 4. It is clear that the three civilian former colleagues of the applicant, who gave evidence on behalf of him during these proceedings, Dallas Maher, Warren Gannon and Michael Sara, would have no difficulty working with him again. 5. In addition, Sergeants Kuhner, O'Brien and Barnes all agreed that they would do their best to work constructively with the applicant if he were to be reinstated by order of this Commission. 6. Sergeant Kuhner gave the following evidence during cross-examination: Q. Can I ask you this. Is (If) Mr Fleming was reinstated in his employment, would you do your best to ensure - so if the Commissioner ordered his reinstatement, would you do your best to ensure that that order was complied with and that he was reinstated properly? A. Reinstated properly how? Q. In terms of that you would try and make sure that there were no difficulties with it, and no problems, and that everyone got on like the Brady Bunch? A. I've always provided that sort of service or supervision within the workplace. Q. Right, and you would do your very best to provide that supervision and make sure any problems there were, with him coming back to work, could be sorted out? A. I would do what I could, if I was ordered to by-- Q. And that's in your role as acting, the acting senior sergeant for the forensic imaging section? A. Yes. Q. Within which Mr Fleming would work, if he were reinstated? A. Yes. 1. Sergeant O'Brien gave the following evidence during cross-examination: Q. Now, in your affidavit you say some things about what would happen if Mr Fleming was reinstated. If Mr Fleming were reinstated by order of this Commission, you would, I take it, do your very best to ensure that any order that this Commission made was given effect to, correct? A. Of course. Q. And you would do your very best to make sure that the working relationship between you and Mr Fleming worked out well for everyone. A. In one way or another, yes. 1. Sergeant Barnes gave the following evidence during cross-examination: Q. In relation to - you understand that Mr Fleming is seeking his job back at New South Wales Police Force as a result of this case? A. I believe so, yes. Q. And do you tell the Commissioner that if the Commission was to make an order reinstating Mr Fleming in his position at New South Wales Police, that you would do your very best to ensure that that order was given effect to? A. Being the person that I am, I like to give people a go. Q. I'm sorry, I just missed that. A. Being the person that I am, okay, I like to give people an opportunity. I can say that opportunity would probably run out fairly quickly. Q. But you'd give it a go; you think it's worth giving a go because that's the type of person you are. A. That's the type of person I am. Q. And you would respect the fact, or you would respect the authority of the Commission to make an order and to decide the case, and you would do your best to make sure, if Mr Fleming were reinstated, that that worked? A. If that was the case, I can't go against any decision. Q. Good to hear. Thank you. 1. I would add that I was impressed with the forthright manner in which each of these three officers gave these answers, and gave their evidence generally. I detected no feeling of acrimony towards the applicant in any of them. Indeed, when I asked Sergeant O'Brien a question about the identity of the employees in the FIS who worked flex time, from the witness box he sought assistance from the applicant who was sitting in the body of the hearing room behind his legal representatives. The following exchange occurred: COMMISSIONER: I have a couple of matters. Q. You said that there were four people in the section on flexitime. A. That's right. Q. Mr Fleming, Mr Gannon, Mr Maher and one other. A. One other. Q. Who was the one other? A. Ron - what's Ron's last name? APPLICANT: Townsend. WITNESS: Townsend. Thank you, John. Ron Townsend. 1. I agree with the submission of counsel for the applicant that this exchange illustrates a lack of animosity between these two men. 2. When considering the question of impracticability of reinstatement of the applicant, I am guided by the following comments of a former Vice-President of this Commission, Cahill J, in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at p 50: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Re Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union of New South Wales v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of a s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody. 1. I do not consider that it would be impracticable to reinstate the applicant to his former position and I propose to make an order to that effect. However, the applicant should not feel any sense of vindication from this decision. His behaviour on 23 and 24 November 2015 and on 7 January 2016, which I find to have been misconduct by him, warrants a sanction short of dismissal. For this reason, I do not propose to make any order in favour of the applicant for back pay for the period 15 July 2016, the date of the applicant's dismissal, to the date of effect of the orders which I propose to make. This constitutes a significant but deserved financial penalty on the applicant. 2. The applicant must realise that losing his temper in the workplace and disrespecting his supervisors, and the police force generally, is not conduct which can be tolerated or excused. This is so, even in those situations where the applicant felt, with some justification, that he was being treated unfairly by his supervisors. 3. The experience of his dismissal, and of these proceedings, should serve as a final warning to the applicant that, if he really wants to retain his employment with the NSW Police Force, he must ensure that outbursts like those which occurred on 23 and 24 November 2015 and on 7 January 2016 never happen again. 4. I will also provide that the reinstatement of the applicant will not take effect for a period of slightly more than two weeks from the date of this decision in order to allow time for the respondent to make arrangements for the reintegration of the applicant back into the workforce, or to otherwise consider the respondent's position with respect to the orders which I now propose to make.

Orders 1. I make the following orders: 1. John Fleming is to be reinstated to the position he held with the NSW Police Force immediately before his dismissal on 15 July 2016 on the same terms and conditions as applied to his position at that time. 2. Order (1) is to take effect on and from Monday 29 May 2017. 3. No order is made for payment to Mr Fleming for the period between the time of his dismissal and 29 May 2017, which period is not to count as service for any purpose. 4. Despite order (3) Mr Fleming's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders (1) and (2). John Murphy Commissioner

Amendments 15 May 2017 - Paragraph [10], 2nd sentence, the word "without" inserted before "... approval (allegation (1))," 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: 15 May 2017