Walsham v Commissioner of Fire and Rescue NSW [2021] NSWIRComm 1013

Industrial Relations Commission New South Wales Medium Neutral Citation: Walsham v Commissioner of Fire and Rescue NSW [2021] NSWIRComm 1013 Hearing dates: 14, 15 and 16 September 2020 Date of orders: 22 February 2021 Decision date: 22 February 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Appeal allowed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – Fire Station Captain – allegations of misconduct – investigation – number of allegations sustained – disciplinary process – demotion from Captain to Retained Firefighter Legislation Cited: Industrial Relations Act 1996 Fire Brigades Regulation 2014 Cases Cited: Marroun v State Transit Authority [2017] NSWCA 273 Texts Cited: Nil Category: Principal judgment Parties: Stuart Walsham (Appellant)

Commissioner of Fire and Rescue NSW (Respondent) Representation: Mr F Anwar of counsel (Appellant)

Mr G Holland, Fire and Rescue NSW (Respondent) File Number(s): 2019/00396698 Publication restriction: Nil

DECISION 1. The appellant, Stuart Walsham, has been employed as a Retained Firefighter with Fire and Rescue NSW ("FRNSW"), and its predecessors since 1984. He has held the rank of Captain at Teralba Fire Station for the past 20 years. 2. According to the appellant, there had been "a history of hostility within the Station amongst multiple members of the crew" which "has become more intense over the last five years with the two Deputy Captains, who reported directly to [the appellant] showing insubordination to their superior", which has been documented by the appellant. 3. The incident which ultimately led to these proceedings occurred on Monday, 7 January 2019. In correspondence dated 14 January 2019 from James Hamilton AFSM, Deputy Commissioner Field Operations, FRNSW, to the appellant, the following was put to him concerning the incident which occurred the previous week: Dear Captain Walsham, Notice of investigation and proposed suspension Professional Standards has received allegations that you may have engaged in misconduct. The reported conduct may have breached the FRNSW Code of Conduct & Ethics, FRNSW Preventing & Responding to Bullying & Harassment Policy & Procedure and Part 3 of the Fire Brigades Regulation 2014. The Allegations: It is alleged that on Monday, 7 January 2019, you attended drill at Teralba 458 station and prior to the commencement of drill, it is alleged that you addressed crew members present in the following manner: 1. You slammed an exit checklist form on a table and abruptly addressed D/Cpt Justin Avery stating, "You need to sort this". 2. You pointed at RFF Dale Lanesbury and stated words to the effect of "don't become a cockhead like this bloke" 3. You pointed at RFF Dale Lanesbury, and called him a liar and used words to the effect of "a prick that sends emails to Newcastle about him being intoxicated at the station". 4. You said to all members present words to the effect of: i. "You are all fuckwits and a bunch of cunts" ii. "You are the 3 most hated people in Newcastle" iii. "You have fucked the station" iv. "Lanesbury is a cockhead and a liar" 1. The appellant was suspended from duty with pay pursuant to clause 38 of the Fire Brigades Regulation 2014 pending the outcome of an investigation into the allegations. 2. By letter dated 4 March 2019, Mr Hamilton advised the appellant of a new allegation against him as follows: In addition to the allegations which were outlined in the letter dated 14 January 2019 that was served on you on 15 January by zone management.., I wish to inform you that the following new allegation has been raised: Allegation 5: a. On or about 16 February 2019, you approached a witness in your misconduct matter, namely RFF Daniel Miller, and placed pressure on this witness, by stating that the allegations were false and saying words to the effect of "he was the only person to get him out of this mess". b. You approached RFF Daniel Miller in the circumstances outlined above, in disregard of correspondence from Deputy Commissioner Jim Hamilton served on you on 15 January 2019. That correspondence formally directed that you were not to approach or contact any potential witnesses (FRNSW employees or members of the public) in this matter and further, that to victimise or harass any employee involved in the investigation of a complaint is a breach of the Preventing and Responding to Bullying and Harassment policy. 1. Peter Moroney of National Workplace Investigations was engaged by FRNSW to conduct an investigation into the allegations against the appellant. In the Investigation Report prepared by Mr Moroney and dated 10 May 2019, Allegations 2, 3, 4 and 5b were sustained on the evidence before the investigator. 2. On 27 August 2019, the decision maker, Mr Hamilton, concurred with the findings in the Investigation Report. In correspondence dated 13 September 2019 from Mr Hamilton, the appellant was advised of the sustained findings with respect to Allegations 2, 3, 4 and 5b, and that the "sustained conduct constitutes misconduct". The appellant was also advised by Mr Hamilton "that the most serious disciplinary action that I am considering in relation to the sustained misconduct is a demotion in rank from Captain to Retained Firefighter". The appellant was offered the opportunity to make a written submission and to provide any additional information before a final decision was made. The appellant availed himself of this opportunity and provided Mr Hamilton with a written submission on 4 October 2019 in which he detailed certain events that had occurred in the lead up to the incident of 7 January 2019. In addition, the appellant provided a number of character references. The appellant also made an "in person submission" to Mr Hamilton on 6 November 2019. 3. By letter dated 2 December 2019, Mr Hamilton advised the appellant of his decision confirming that Allegations 2, 3, 4 and 5b were sustained. The appellant was also advised of Mr Hamilton's determination to demote him from Captain to Retained Firefighter "effective immediately". The appellant's suspension from duty ceased with effect from the same date. 4. On 16 December 2019, the appellant instituted a public sector disciplinary appeal ("Appeal") against his demotion pursuant to section 98 of the Industrial Relations Act 1996. This decision determines the outcome of the Appeal.