Fraser v Commissioner of Fire and Rescue NSW [2020] NSWIRComm 1072

Industrial Relations Commission New South Wales Medium Neutral Citation: Fraser v Commissioner of Fire and Rescue NSW [2020] NSWIRComm 1072 Hearing dates: 4 August 2020. Written submissions received 13, 17 August 2020 Decision date: 22 October 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Appeal dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – demotion from Deputy Manager, ComSafe Training Services, Operational Support Level 3 to Senior Firefighter – settlement reached – Deed of Release – demotion altered to Assistant Equipment Management Officer role, Operational Support Level 2 – appellant initially placed in Technical Officer role, Operational Support Level 2 – whether respondent had repudiated the Deed – whether the Deed constitutes a bar to the appellant pursuing his disciplinary appeal Legislation Cited: Industrial Relations Act 1996 Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Andrew Fraser (Appellant)

Commissioner of Fire and Rescue NSW (Respondent) Representation: Counsel: Ms L Saunders (Appellant) Mr M Easton (Respondent)

Solicitors: Ms A Polites, Fire Brigade Employees' Union (Appellant) Ms C Lenard, Kingston Reid (Respondent) File Number(s): 2019/00254133 Publication restriction: Nil

DECISION 1. This is a public sector disciplinary appeal by Andrew Fraser, an employee of the Commissioner of Fire and Rescue NSW, the respondent to the appeal. 2. The appellant joined the NSW Fire Brigades, now Fire and Rescue NSW ("FRNSW"), in 1995 as a recruit firefighter. By 2018, the appellant was employed in ComSafe Training Services, FRNSW's registered training organisation, as the Deputy Manager. His position was graded at Operational Support Level 3 under the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award ("Award"). 3. On 6 August 2019, following an investigation into his conduct, the appellant was demoted to Senior Firefighter and reassigned into an operational role. This was, in effect, a demotion of four grades and a salary reduction of $707.26 per week or approximately $36,777 per year. It is against this demotion that the appellant has appealed. 4. The appeal was listed for hearing before me on 19, 20 and 21 February 2020. However, on 18 February 2020, the day before the hearing was due to commence, the Commission received correspondence from the solicitors for the respondent requesting that 19 February 2020 be converted to a conciliation conference before me. The appellant's representative, the Fire Brigade Employees' Union ("FBEU"), supported this proposal. I agreed to conduct a conciliation conference on 19 February 2020, but only on the basis that both parties gave an undertaking not to exercise their rights under section 173 of the Industrial Relations Act 1996 if the matter did not settle. Both parties gave the undertaking. 5. At the conciliation conference on 19 February 2020, the appellant was represented by Ms L Saunders of counsel and the respondent was represented by Mr M Easton of counsel. The transcript of the proceedings on that day is set out below: COMMISSIONER: The matter was listed before me today initially for hearing but, as a result of some correspondence received in the Commission, I understand the parties wish to engage in some conciliation this morning. EASTON: Yes, Commissioner, the parties in the last little while, the last week or two, have exchanged offers and had discussions about things. We're very close to a resolution but not quite there. I think both sides are optimistic about it. Rather than have everybody prepare and witnesses attend for today, seeing that there's going to be a shorter number of witnesses anyway than what was initially expected, we thought it a better use of everyone's time to attempt conciliation today and then, if that doesn't work, we're reasonably comfortable that there'd be enough time tomorrow and Friday to hear the matter if required and certainly, of course, from the respondent's side, if you assist us with the conciliation process today but it's not successful, then we certainly won't be looking at any application under s 173. SAUNDERS: Yes, I agree with what my friend has said. I think we can productively use the time today. Perhaps the best thing to do is go off record and then we can explain where the parties are up to. COMMISSIONER: Very well. RECORDING EQUIPMENT SWITCHED OFF AT COMMISSIONER'S REQUEST SAUNDERS: The parties have reached in principle agreement to progress the matter. (1) Fire & Rescue will undertake to have Mr Fraser start in the new logistics role within 3 weeks of today's date, earlier if possible. (2) A report back to be scheduled for, subject to the Commission's convenience, 14 April at 9.30am. (3) Mr Fraser to notify the Commission and the respondent by 7 April as to whether that report back needs to go ahead. (4) If Mr Fraser on the 7th indicates that the report back is not needed or, in other words, elects not to proceed with it-- EASTON: If Mr Fraser does nothing, the proceedings will be taken to be discontinued on the next day, 8 April. SAUNDERS: (5) The position that Mr Fraser currently holds at Beecroft station will be preserved for him in the interim. (6) Those timelines can be extended by mutual agreement, and (7) this is to be recorded in a deed which we anticipate we will finalise in the next couple of days. In addition, there's some undertakings that need to be put onto the record. COMMISSIONER: Very well. SAUNDERS: Mr Fraser undertakes to not disclose the evidence or its contents filed in the proceedings except to his legal advisers. The FBEU undertakes to take all reasonable steps to prevent its officers, employees or agents from disclosing the evidence or its contents filed in these proceedings. Fire & Rescue New South Wales undertakes to take all reasonable steps to prevent its officers, employees or agents from disclosing the evidence or its contents filed in these proceedings. EASTON: Fire & Rescue does make that undertaking. SAUNDERS: That's all I think needs to be put. COMMISSIONER: I thoroughly commend the parties for reaching the position that you have reached. I propose to stand this matter over for report back before me at 9.30am on Tuesday 14 April 2020 but, on the basis that Ms Saunders outlined, if the matter does not need to go ahead on that date, the proceedings will be discontinued. ADJOURNED TO TUESDAY 14 APRIL 2020 FOR REPORT BACK AT 9.30AM