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 Deed of Release 1. The appellant, FRNSW and the FBEU executed a Deed of Release dated 24 February 2020 ("Deed"), the relevant parts of which are set out below: Background A. SF Fraser was employed by FRNSW as Deputy Manager ComSafe Training Services Operations Support Inspector. B. On 6 August 2019 FRNSW Deputy Commissioner Jeremy Fewtrell wrote to SF Fraser advising him that he had decided to impose a disciplinary penalty of demotion and removal from his role as Deputy Manager ComSafe Training Services to a Senior Firefighter position in respect of the sustained allegations of bullying and harassment (Allegation One), and to issue a disciplinary reprimand in respect of the sustained allegation that he had disobeyed a lawful direction (Allegation Two), and provided reasons for his decision (Misconduct Outcome), C. At the time of the Misconduct Outcome, SF Fraser was remunerated as an Operational Support Inspector as per the Crown Employees (Fire & Rescue NSW Permanent Firefighting Staff) Award 2017 (Permanent Award). D. SF Fraser has sought relief from the Misconduct Outcome as a Public Sector Disciplinary Appeal brought pursuant to Part 7 of the Industrial Relations Act 1996 (IR Act) for reduction in penalty only. SF Fraser is represented by the FBEU as the applicant in matter no. 2019/254133 before the Industrial Relations Commission (IRC) of NSW (Proceedings). E. The Parties have agreed to accept the terms and conditions set out in this Deed in full and final discharge of their respective obligations and in settlement of all facts or matters referred to or alleged in the Proceedings in accordance with the terms of this Deed. Agreed terms 1. Undertaking and warranty 1.1 SF Fraser undertakes and warrants that he: (a) Accepts his removal from the Operational Support Inspector position of Deputy Manager ComSafe; (b) Will not apply for any role in Comsafe unless invited to do so by FRNSW management; (c) Will not commence or attempt to commence any proceedings in any jurisdiction against FRNSW arising from any aspect of the Misconduct Outcome or the Proceedings against FRNSW; save as to his protected rights under the Workers' Compensation Act 1987. 1.2 FRNSW undertakes and warrants that: (a) Deputy Commissioner Fewtrell's decision will be redacted and replaced with a decision effective 6 August 2019 that Mr Fraser: i. in respect of Allegation One, be reduced in rank to Operational Support Level 2, with the consequent reduction to a weekly wage of $2,030.76; ii. in respect of Allegation Two, be reprimanded: and iii. be ineligible for promotion or higher duties appointments for a period of 12 months (I.e. until 6 August 2020). (b) SF Fraser will be back-paid the difference between Operational Support 2 and Senior Firefighter weekly wage to 6 August 2019 at the rate of $340.59 per week; (c) FRNSW will create an ongoing placement for SF Fraser in an Operational Support Level 2 position in Operational Logistics working special projects assisting Equipment Logistics and Equipment Management (Position), based at Greenacre. A copy of the Position Description is attached at Schedule A; (d) SF Fraser will remain as a Senior Firefighter and will commence in the Position in accordance with written notice by FRNSW which is to be issued no less than 3 weeks from 19 February 2020; (e) SF Fraser's position at Beecroft will be preserved until 14 April 2020; (f) At the expiry of the period in 1.2(a)iii. above, SF Fraser will be able to access any opportunities by merit selection and such processes will be conducted in accordance with FRNSW policies and procedures. 1.3 Subject to clause 1.8, SF Fraser and FBEU undertake and warrant that they will not publish or broadcast any information regarding the Proceedings. 1.4 The FBEU undertakes and warrants that SF Fraser's acceptance of the role in 1.2(c) above negates the need for further consultation by the FBEU in respect of this role. (collectively, the Undertakings). 1.5 SF Fraser acknowledges and agrees that each of the Undertakings in clauses 1.1 and 1.3 are separate and enforceable undertakings and warranties. 1.6 FRNSW acknowledges and agrees that each of the Undertakings in clause 1.2 are separate and enforceable undertakings and warranties. 1.7 FBEU acknowledges and agrees that each of the Undertakings in clauses 1.3 and 1.4 are separate and enforceable undertakings and warranties. 1.8 Nothing in this Deed prevents SF Fraser or FRNSW from stating, if necessary, that the Proceedings have concluded, 2. Release and discharge SF Fraser and the FBEU unconditionally releases and discharges FRNSW and its officers, employees, servants, agents, assigns and insurers from any and all Claims, no matter how the same arose, and on every count, which now exist including in relation to the Misconduct Outcome and the Proceedings, which, but for this Deed, exist at the date of this Deed. 3. Report Back and Discontinuance of the Proceeding 3.1 The Proceedings will be listed for report back on 14 April at 9.30am before Commissioner Murphy at the IRC. . 3.2 SF Fraser is to notify the IRC and FRNSW in writing by 7 April 2020 as to whether the report back is required to go ahead. 3.3 Should SF Fraser indicate a report back is not needed, or should SF Fraser not provide any written notice in accordance with clause 3.2, the Proceedings will be taken as discontinued on 8 April 2020. 3.4 Unless SF Fraser requests the report back go ahead, SF Fraser agrees to instruct the FBEU to file a Notice of Discontinuance of the Proceedings with the IRC and take all steps necessary and do all things required to discontinue the application within 3 business days of 8 April 2020. 3.5 The dates identified as clauses 3.2 to 3.4 inclusive can be amended by written agreement between FRNSW and the FBEU. ……………………….. 7. Warranties 7.1 SF Fraser and the FBEU warrant that: (a) this Deed is voluntarily entered into; (b) SF Fraser has been given the opportunity to take legal and financial advice as to the nature, effect and extent of this Deed; (c) SF Fraser understands the legal significance and effect of executing this Deed; and (d) SF Fraser is aware that FRNSW is relying upon these warranties and remains prepared to exercise its rights in the event any such warranties are breached. 7.2 FRNSW warrants that it has not made any promise, representation or inducement or been party to any conduct material to the entry into of this Deed other than as set out in this Deed. 8. Further action Each of the Parties to this Deed must sign and execute documents and do all such further acts, matters and things that are necessary and desirable to give effect to the provisions of this Deed. 9. General …………………….. 9.3 Both Parties may plead this Deed in any jurisdiction as a complete defence to any actions, suits or proceedings commenced, continued or taken by or on behalf of the other party in connection with any of the matters referred to in this Deed, including but not limited to any of the matters referred to in the Background of this Deed. 9.4 Every clause and sub-clause of this Deed will, where the context permits, be severable from every other without invalidating or affecting the remaining provisions of this Deed or the validity of that provision in any other jurisdiction. 9.5 A waiver by one Party does not prejudice its right in respect of any subsequent breach of this Deed by the other party. A Party does not waive its rights under this Deed because it grants an extension or other forbearance to the other Party. 9.6 This Deed constitutes the entire agreement of the Parties relating to this Deed and supersedes all prior understandings, negotiations, agreements, written or oral, express or implied, in relation thereto. 1. A position description for the position of Assistant Equipment Management Officer was attached to the Deed. This position was graded as Operational Support Level 2 under the Award with a weekly rate of pay of $2,457.37. The terms of the Deed meant that the reduction in the appellant's weekly rate of pay would be $366.67 rather than $707.26 from 6 August 2019, and $375.81 rather than $724.85 with effect from 17 February 2020, the date of the last 2.5% increase in rates of pay under the Award. 2. At the report back hearing before me on 14 April 2020, Ms Saunders stated that the appellant had not been placed in the Assistant Equipment Management Officer position at Greenacre but "has actually been made a storeman in Chullora". This was disputed by the respondent. It was stated on behalf the appellant that he "doesn't contend that the tasks he is being required to do are impermissible, or not within the scope of his job, the agreed description. The issue is that he is performing only the lower level aspects". The matter was adjourned for a further conciliation conference before me on 28 April 2020. 3. The matter came back before me on 28 April and 18 May 2020. On the latter occasion I was advised that the parties had been unable to resolve the matter and that the appellant wished to proceed with his public sector disciplinary appeal. It was indicated on behalf of FRNSW that it would be pleading that the Deed was a bar to the appeal going forward. I made directions for the filing and serving of evidence and submissions going to the issue of whether the appellant's disciplinary appeal could proceed in light of the terms of the Deed. I listed that matter for hearing before me on 4 August 2020. The hearing 1. At the hearing on 4 August 2020, the respondent relied upon witness statements from Chief Superintendent Jeremy Stubbs, Operational Logistics, Inspector Anthony Steele, Manager Hazmat Logistics, and Ms Emily Baxter, solicitor for the respondent, which had been filed on 9 June 2020. 2. Chief Superintendent Stubbs gave evidence that, initially, he was going to place the appellant in the Equipment Logistics team in the newly created position of Assistant Equipment Management Officer. However, according to the Chief Superintendent, it became clear that the best role available for the appellant at the time was in the Hazmat team due to the needs of several special projects allocated that team. There was also limited work in the Equipment Management team at the time so the appellant was placed in the role of Technical Officer in the Hazmat team which was tasked, at that time, with preparing for the distribution of new respiratory protection devices. 3. As a result of the onset of the COVID-19 pandemic, the appellant was removed from the equipment rollout work and, instead, moved on to a more permanent project which involved the remote auditing of Hazmat equipment within Fire Stations. Chief Superintendent Stubbs stated that, from general discussions with the appellant's direct line manager in the Hazmat team, he appeared to be working well with the team both in the office and, under the restrictions then in place, working from home. 4. Inspector Steele gave evidence of a conversation that he had with the appellant on 20 March 2020 during which the appellant complained that he was doing the job of a store person. Inspector Steele disagreed and stated that the role was that of a Technical Officer. Shortly after this conversation, the appellant was able to start work on a project called the Auditing Project, working remotely. 5. Annexed to the witness statement of Ms Baxter was the Deed and a chain of email correspondence between Commission support staff and the FBEU in which Ms Anastasia Polites stated on behalf of the FBEU in relation to the proposed report back before me on 14 April 2020: Dear Associate, Thank you for your email. This was an optional report back, however the Union on behalf of the applicant, Mr Fraser, requests that the report back proceed as the agreement that was made between the parties needs to be revisited. In particular, Mr Fraser has been placed in a position that is not suitable. 1. In written submissions filed at the same time as the witness statements, the respondent argued that the effect of the Deed was to act as a bar to the appellant continuing to press these proceedings in the Commission. 2. In his witness statement, the appellant claimed that he had not been consulted about the nature of the temporary Technical Officer role in which he had been placed. He stated that when he was working at Chullora, he was performing the work of a storeman. He claimed that after the COVID-19 pandemic hit, he began working remotely contacting stations and conducting audits of equipment with the assistance of the firefighters at the station. He stated that he had not been performing the tasks set out in the Assistant Equipment Management Officer position description. 3. It was submitted on behalf of the appellant that FRNSW had not complied with the terms of the Deed because the temporary Technical Officer role was very different from the role of Assistant Equipment Management Officer. It was further submitted that, by virtue of clauses 1.2(e) and 3.1-3.5 referring to the report back listed for 14 April 2020, the Deed did not reflect a concluded agreement and that, by its non-compliance, FRNSW had repudiated the Deed and the appellant has, by electing to have the substantive matter proceed, accepted that repudiation. 4. In a witness statement in reply, Chief Superintendent Stubbs stated that, during a teleconference meeting with the appellant and his representative on 17 April 2020, the appellant was asked if he would accept moving to the Assistant Equipment Management Officer role but he declined. After receiving and reading the appellant's witness statement in these proceedings, Chief Superintendent Stubbs organised a further meeting on 2 July 2020 with the appellant to address his concerns as raised in that document. The meeting took place over the phone due to FRNSW's current COVID-19 restrictions. During this meeting it was agreed that the appellant would be transferred to the Assistant Equipment Management Officer role in Equipment Logistics. He commenced in the role on 7 July 2020. At the time of the hearing on 4 August 2020, the appellant was working in that role. 5. Despite this, Ms Saunders, on behalf of the appellant, submitted that the Deed did not constitute a concluded agreement between the parties. It was put that the proposed report back before me on 14 April 2020, which is referred to in clause 3.1 of the Deed, meant that the proposed placement of the appellant in the Assistant Equipment Management Officer role was, in effect, for a trial period with the appellant having the right to come back to the Commission and pursue his appeal if he found that role unsuitable. It was again put that, by placing the appellant in the Technical Officer role rather than the Assistant Equipment Management Officer role, FRNSW had repudiated the Deed and the appellant, by accepting that repudiation, was entitled to pursue his appeal, even though he had been subsequently placed in, and was performing the work of, the Assistant Equipment Management Officer role. Determination 1. I reject the submission put on behalf of the appellant to the effect that the intention of clauses 3.1-3.5 of the Deed was to permit the appellant to come back before the Commission on 14 April 2020 and pursue his disciplinary appeal if he found the role of Assistant Equipment Management Officer unsuitable. It is not entirely clear to me what the purpose of clauses 3.1-3.5 is, but I reject the submission that they effectively allow the appellant to opt out of the terms of the Deed. I am reinforced in this conclusion by the clear wording of paragraph E under the heading "Background" and clauses 1.1, 1.2, 1.4, 1.5 and 2 of the Deed which disclose the parties' intention that the terms of the Deed would bring to an end the appellant's disciplinary appeal. It is more likely that the purpose of clauses 3.1-3.5 was to allow the appellant to come back before the Commission to ventilate any concerns he may have had with the manner in which the terms of the Deed had been implemented, or to deal with any "loose ends", rather than to re-agitate his disciplinary appeal on the basis that his acceptance of the role of Assistant Equipment Management Officer was for a trial only and he now regarded the position as not suitable. 2. It was unfortunate that Chief Superintendent Stubbs initially placed the appellant in the Technical Officer role rather than the Assistant Equipment Management Officer role as was required by the terms of the Deed. However, the situation was quickly rectified. During the teleconference on 17 April 2020 between the appellant, Chief Superintendent Stubbs and Ms Patricia Lenahan, Principal Legal Strategist, Employee Relations, FRNSW, the appellant was asked if he would accept moving to the Assistant Equipment Management Officer role as outlined in the Deed. He declined. He was then asked if he would accept any Operational Support Level 2 role in Logistics (i.e. Equipment, Hazmat or Rescue). The appellant stated that he didn't want any role in Logistics. He stated that the job was not what he was expecting and he only accepted it on a trial basis. As stated above, I reject this construction of the terms of the Deed. 3. Following the further teleconference on 2 July 2020, the appellant was transferred into the Assistant Equipment Management Officer role and at the time of the hearing of this matter on 4 August 2020, was continuing to work in that role. 4. The appellant has benefited considerably from the terms of the Deed. He has accepted, and continues to accept, the significantly higher weekly rate of pay than was originally determined by Deputy Commissioner Fewtrell with effect from 6 August 2019. 5. I do not regard the temporary hiatus in placing the appellant in the Assistant Equipment Management Officer role as constituting a repudiation of the Deed by FRNSW. I agree with the submissions of the respondent to the effect that the terms of the Deed constitute a bar to the appellant proceeding with his disciplinary appeal. Order 1. The public sector disciplinary appeal filed by the appellant, Andrew Fraser, on 15 August 2019 in matter number IRC 2019/00254133 is dismissed. John Murphy Commissioner ********** Amendments 17 November 2020 - Paragraph "20" change the word "is" to "his" 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: 17 November 2020