Industrial Relations Commission New South Wales Medium Neutral Citation: Fleming v Commissioner of Police [2023] NSWIRComm 1050 Hearing dates: 11 May 2023 Date of orders: 24 May 2023 Decision date: 24 May 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: (1) John Fleming is to be reinstated to the position he held with the NSW Police Force immediately before his dismissal on 16 December 2022 on the same terms and conditions applied to his position at that time. (2) Order (1) is to take effect on and from Monday 5 June 2023. (3) No order is made for payment to Mr Fleming for the period between the time of his dismissal and 5 June 2023, 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: EMPLOYMENT LAW – unfair dismissal – termination for misconduct outside of work – nature and seriousness of misconduct – history of similar misconduct in the workplace – previous conduct occurred about six years prior – dismissal disproportionate response – applicant reinstated – applicant not to receive back pay Legislation Cited: Industrial Relations Act 1996 (NSW), s 84, 88, 89 Cases Cited: Corrective Services NSW v Danwer [2013] NSWIRComm 61 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Category: Principal judgment Parties: John Fleming (applicant) Commissioner of Police (respondent) Representation: Counsel: R Reitano (applicant) O Fagir (respondent) Solicitors: McNally Jones Staff Lawyers (applicant) Makinson d'Apice Lawyers (respondent) File Number(s): 2022/388130 Publication restriction: Nil DECISION 1. Mr John Fleming (applicant) has commenced proceedings for an unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 (NSW) (Act). The claim is brought against his former employer, the Commissioner of Police (respondent). 2. The applicant is in his mid-sixties. Just prior to his dismissal had been employed by the respondent continuously for over twenty years as an Imaging Technician (IT) working in the Forensic Imaging Section of the Forensic Service Group at the Sydney Police Centre in Goulburn Street, Surry Hills. 3. The applicant's employment was terminated after a finding of misconduct by the respondent. The relevant conduct occurred on 22 February 2022 when the applicant was engaged in an altercation with railway staff when Sydney Trains was not operating due to industrial disputation. The applicant admitted the conduct. 4. After an investigation and a show cause process, the respondent terminated the applicant's employment effective on 16 December 2022. 5. The applicant advances his case on the basis that the termination was harsh, unreasonable, and unjust. The applicant placed emphasis on his submission that the dismissal was a disproportionate response to the misconduct. In turn, the respondent emphasised the applicant's employment history and his responses in the disciplinary process. Background 1. The background to the conduct that led to the termination of the applicant's employment was largely uncontroversial. 2. The applicant gave the following account of the incident (applicant's first statement at [18]-[40]): "I had to catch three trains to get to work. On the morning of 22 February 2022, I had caught the train from Emu Plains to Parramatta, then changed trains for Lidcombe Railway Station. I had to get off at Lidcombe Railway to catch my next connection to Birrong Railway Station, which is on the T3 Bankstown line. However, because of the short notice given about limited train services due to the just-announced transport industrial dispute, I could not get the connecting train to Birrong station, as there was an announcement that all trains to the T3 Bankstown line were cancelled due to the industrial dispute. This sudden change in my transport arrangements, and the fact that I waited 20 minutes for a bus replacement, which did not arrive, caused me undue stress, as I expected this would make me late for work. I felt marooned at an early time of the morning, with trains not going and no buses. Having no other means of getting to work, I began to walk. I was carrying a full backpack, which contained work clothes, lunches for 2 days, small bottle of milk, about 3 pieces of fruit, personal items such as hankies, comb and wallet, resistant bands for physiotherapy, spectacles and their case, and possibly a towel because every alternate week I pack a clean towel. I also was carrying an umbrella. I needed to travel 4.3km on foot if I was to get to work on time. I was upset with having to walk because at the time I was in discomfort due to my chronic left and right knee/foot/ankle injuries. As I crossed a road to get onto another footpath, I passed some men who appeared to be rail workers. They were sitting outside at a cafe drinking coffee and having a good time and laughing. I identified them as rail workers from the insignias or logos on their shirts. I became annoyed when I saw them having a laugh and enjoying themselves because of the inconvenience they were causing me and other rail commuters. As I walked past them, I recall making a comment along the lines "get back to work you bludgers." Some of the men then responded with some comments directed at me, the content of which I now do not recall. These comments caused me to turn around and lunge at the barrier that the cafe uses to delineate the outdoor area. My actions nudged the barrier forward slightly before being pulled back. There was no malice in my action and I had no intention of assaulting anyone. It was just a frustrated and instinctive reaction to their comments. I did not see anyone get hit on the shoulder by the barrier, nor did anyone make such a complaint. If I did hit someone with the barricade, it was not my intention to do so and I apologise for it. I then had a further verbal exchange with these railway workers for a few seconds. One of them again said something to me, which I now do not remember. This caused me to pick up an empty foam coffee cup and throw it at him. I then turned around and left and continued walking to work. My actions were spontaneous and not premeditated. I admit saying to the rail workers something along the lines "get a real job you bludgers. You guys get paid for nothing". In the further verbal exchange with these rail workers, in my anger I may have said to them something like "railway trash" or "railway scum". I admit that I was angry and frustrated because of the sudden change in rail services, the inconvenience caused to me and the fact that I had to walk a lengthy distance to work at a time when I was experiencing pain and discomfort with my left leg and had limited mobility. Afterwards, I reflected upon what I had done and realised how stupid I had been. Having to walk approximately 4.3km to work aggravated my knee problems and I had to have more physiotherapy on them. … … I did not wear a uniform at work, as I am a civilian employee of NSWPF. Therefore, there was nothing to identify me as an employee of the NSWPF. I went to work and thought nothing further of this incident." 1. The applicant's first statement attached medical and physiotherapy certificates relating to issues he had experienced with his left ankle and knee as a consequence of injury and osteoarthritis. 2. There was some difference in the accounts about how the barricade came to strike the worker, Mr Quoc Dat Ha, who gave evidence in the proceedings. The CCTV footage shows that the applicant took hold of the barricade with his left hand and pushed it towards Mr Ha while he simultaneously lunged forward. The act of pushing the barricade appeared to be deliberate, the images depicting a man overtaken by rage. Mr Ha was shaken up by the incident. He reported the matter to his supervisor and later made a statement to Police. 3. A Police investigation followed, and the applicant was identified though the CCTV footage. On 11 July 2022, the applicant was interviewed by Police in relation to an allegation of assault. He admitted the conduct. The applicant was subsequently issued a Criminal Infringement Notice (CIN) carrying a penalty of $500 for Offensive Behaviour. He did not contest the CIN and paid the penalty. 4. On 25 July 2022, the respondent put written allegations to the applicant in connection with the incident. In this letter, the delegate stated that if a finding of misconduct was found against the applicant, the following action may be taken: 1. Reduce your classification or grade 2. Assign you to a different role 3. Caution or reprimand you 1. The applicant responded in writing on 14 August 2022. He stated that the allegation was "generally correct". He then referred to stressors that he claimed had a strong bearing on what occurred. These included the immediate circumstances, consistent with his evidence as set out above. In addition, he referred to long term stress cause by "the improper interpretation of the rostering procedure for unsworn staff with FIS." In addition, he stated that there was "a 3rd work contributor to my stress predating 22 Feb 2022, which I have not mentioned, but along with the other 2 causes it has been mentioned in my well-check sessions (as well as the coping mechanisms I employ to overcome these problems)." The applicant attached a large number of documents to his response including information with respect to the "rostering dispute." 2. On 31 August 2022, the respondent notified the applicant of findings of misconduct. On 3 November 2022, the respondent notified the applicant of a new proposed outcome, namely dismissal with an opportunity to resign, and invited the applicant to respond (the show cause letter). 3. In the show cause letter, Mr David Driver, Commander, stated: "In considering the proposed action to be taken against you, I have had regard to the facts of this current matter along with your prior disciplinary history. I conclude that your conduct towards the Sydney Trains employees on 22 February 2022, constitutes several breaches of the NSW Police Force's Statement in Values in that; ● You did not place integrity above all (Point 7a) ● You did not preserve the rights and freedoms of individuals (Point 7c) ● You did not strive for citizen and police personal satisfaction (7e) I further conclude that your conduct on this occasion also constitutes several breaches of the NSW Police Force Code of Conduct and Ethics in that: ● You have not behaved honestly and in a way that upholds the values and good reputation of the NSWPF, whether on or off duty (Point 1) ● You have not treated everyone with respect, courtesy and fairness (Point4) ● You have not complied with the law, whether on or off duty (Point 6) I have carefully considered all information made available to me relating to this matter. I note in both the ERISP and your employee statement, dated 14 August 2022 you admitted your behaviour but expressed no remorse or contrition for your conduct. Rather, you sought to justify your actions by detailing immediate and long-term stressors that you have suffered. Your justification is misdirected. Your proven misconduct in this instance, highlights a pattern of aggressive outbursts throughout your service history, that are incompatibly with the NSWPF's values and expectations. I have carefully considered your prior misconduct matters. I am aware that you were placed on a Performance Management Plan in May 2009 because of your poor work performance and negative attitude. I am also aware that you were referred that same year for medical assessment regarding your fitness to continue employment with the NSWPF. Whilst you were assessed as fit for employment, Dr Matthew Paul, consultant occupational physician, in Sept 2009 noted that following, which was adopted in your 2017 NSW IRC proceedings at [19] "He has problems controlling his temper…he complains of stress when he does not get what he wants at work." In 2015, you were placed on a Conduct Management Plan for your failure to comply with repeated directions to seek approval before exceeding a 7-hour workday and for disrespectful outbursts directed towards your colleagues. The continuation of your conduct, being the verbal altercation with Sgt O'Brien on 23 and 24 November 2015 and your altercation with Sgt Barnes on 7 January 2016 resulted in a finding of misconduct and termination of your employment. In the 2017 NSW IRC proceedings for those matters, you were warned by Commissioner Murphy, who held at [135]: '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' And further at [155]: '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.' You have been on notice since 2017, that your outbursts and aggressive behavior will not be tolerated. In determining my proposed action, I have considered the findings of misconduct by you and the totality of misconduct and other behaviour referred to above." 1. The applicant responded on 18 November 2022. In summary, the applicant noted that the past issues in his employment between 2009 and 2016 corresponded with S/Sgt Arnot Jansen being the Commander of the FIS Unit. I have considered the applicant's responses in the investigation process further below. 2. On 9 December 2022 the applicant was dismissed with an opportunity to resign. He did not resign and was dismissed on 16 December 2022. The applicant and his employment history 1. The applicant is sixty-five (65) years of age. He is a single man with a mortgage repayment of $607.43 per week, the usual bills to pay and some additional medical expenses associated with his knee injuries. There was no evidence with respect to the value of any assets owned by the applicant or a full account of any income he may be in receipt of. 2. Between 4 July 1986 and 27 October 2000, the applicant was employed as a Government Photographer doing work for the Department of Defence (School of Military Engineering), Royal North Shore Hospital and Prince of Wales Hospital. The applicant commenced employment with the NSW Police Force (NSWPF) on 30 October 2000 as an IT, also performing photographic work. In 2003, he started attending crime scenes to capture 360-degree virtual reality presentations. During his employment, the applicant had attended various courses to improve his skills and capability. 3. The applicant had received medallions from NSWPF for 10-, 15- and 20-years' service. The medallions are stated as recognising diligent and ethical service as a non-sworn officer. He also received a Commissioner of Police Long Service Award for 15 years' service in 2020 and a Commissioner of Police Emergency Commendation in December 2021. 4. Otherwise, the applicant does not have a good employment history with the respondent from 2009 to early 2016. As set out in the show cause letter, the applicant was placed on a Performance Management Plan in May 2009 due to his poor work performance and negative attitude (2009 PMP). In September 2009 he was assessed as fit for employment by Dr Matthew Paul, consultant occupational physician. It is not in contest that the report of Dr Paul found that, "He has problems controlling his temper…he complains of stress when he does not get what he wants at work." I observe that Dr Paul's report is stale having been produced over 13 years ago. Similarly, the passage for time since the 2009 PMP is relevant in assessing the applicant's employment history. 5. The applicant was previously dismissed on 15 July 2016 for misconduct which included yelling and swearing at two of his supervising sergeants. Commissioner Murphy reinstated the applicant to his employment effective 29 May 2017, with no back pay ordered: Fleming v Commissioner of Police [2017] NSWIRComm 1023 (Fleming). Both parties made submissions with respect to the relevance of the decision in these proceedings. It is necessary to summarise Commissioner Murphy's findings and decision. 6. The applicant was dismissed by the respondent effective 15 July 2016 on the basis that he had engaged in misconduct. The respondent relied upon nine allegations against the applicant. Ultimately, Commissioner Murphy found two of the nine allegations as substantiated. In summary, the two allegations that were substantiated were that: 1. On 23 and 24 November 2015 the applicant yelled and swore at Sergeant O'Brien in an aggressive manner, (the yelling and swearing allegation). 2. On 7 January 2016 the applicant swore and was abusive and intimidating towards Sergeant Barnes, (the swearing, abusive and intimidation allegation). 1. The yelling and swearing allegation arose in the context of the applicant seeking permissions from Sergeant O'Brien to work additional hours to finish a particular job. Sergeant O'Brien refused that request. Commissioner Murphy found that his refusal was based of Sergeant O'Brien's misunderstanding of the entitlement under the relevant Award for the applicant to access flex time. Commissioner Murphy referred to Sergeant O'Brien's account that on 23 November 2015, the appellant ([122]): * 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. Commissioner Murphy noted that the applicant did not deny using the language attributed to him. He decided that both men raised their voices during the exchange, contrary to Sergeant O'Brien's account that he did not do so: [125] of Fleming. 2. The incident on 24 November 2015, involved the applicant calling Sergeant O'Brien a "dickhead" and saying, "It's no wonder everyone hates police." With respect to the yelling and swearing allegation, Commissioner Murphy stated at [127]-[128]: "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. 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." 1. The swearing, abusive and intimidation allegation related to an incident on 7 January 2016. Sergeant Barnes had been allocated to be the applicant's mentor in the context of his Conduct Management Plan arising out of the yelling and swearing allegation. He overheard the applicant offering to attend at a different location to assist another colleague with a work task. Sergeant Barnes told the applicant he was not permitted to attend the other site without supervision and the applicant took exception to this. The applicant swore stating, "This is fucking ridiculous" and "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": [105]-[106] of Fleming. 2. Commissioner Murphy found that the behaviour was disrespectful conduct towards a supervisor, and it was properly characterised as misconduct. He also accepted that Sergeant Barnes' demeanour during the incident was confrontational and aggressive. Commissioner Murphy decided that the incident was less serious than the conduct on 23 and 24 November 2015 (the yelling and swearing allegations): [110]-[111]; [133] of Fleming. He also found that the incident may have been avoided had the restrictions on the applicant leaving the office without supervision been explained to him: [133] of Fleming. 3. Commissioner Murphy concluded that the termination was harsh, unreasonable, and unjust. In arriving at this decision, he listed relevant mitigating factors including the applicant's age, specialised nature of his role and length of service (then 16 years). Commissioner Murphy also considered the circumstances within which the conduct occurred, as outlined above, as mitigating. He concluded (at [137]): "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." 1. The applicant was reinstated, without back pay. Commissioner Murphy stated at [153]-[155]: "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. 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. 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." 1. I have considered the relevance of the decision in Fleming below. The applicant's case 1. The applicant relied upon three statements by him in the proceedings and was cross-examined at the hearing. 2. The applicant filed a Case Outline on 3 March 2023 and also filed written submission at the hearing on 11 May 2023. Counsel for the applicant also addressed the Commission at the hearing with final oral submissions. 3. In summary, the applicant's case was as follows: 1. The dismissal was unreasonable and unjust because it was "dishonest, disrespectful, and unfair" and contrary to the Standard of Professional Conduct to increase the severity of the sanction from a reduction in rank, removal to a different role and or a caution or reprimand; to dismissal. 2. The dismissal was unreasonable because the respondent misapplied its policy requiring the focus of management action to be on the actual conduct and its circumstances rather than "some wider inquiry". 3. The dismissal was unreasonable given the availability of many less drastic alternative sanctions than dismissal that could be regarded as corrective. 4. The dismissal was harsh because it was disproportionate to the conduct engaged in by the applicant. In this regard, the following points were submitted as relevant: 1. The immediate circumstances of the incident on 22 February 2022, including the reasons the applicant was upset on the day in question. 2. While the conduct was serious, it should not be overstated as being more serious than it was. 3. The applicant acceptance of reasonability for his wrongdoing, as demonstrated by his admissions to Police and the respondent and payment of the PIN. The applicant also submitted he had taken responsibility and shown regret and remorse in his response to the respondent's investigation and in the proceedings. 4. The previous disciplinary matters relating to 23 and 24 November 2015 and 7 January 2016 had no bearing on the misconduct of 22 February 2022, which was very different in nature. 5. Consideration should have been given to the applicant's service history including his awards for 'ethical and diligent' service presented to him at 10,15 and 20 years' service. 6. No real consideration was given to the applicant's particular conduct and the consequences of dismissal to him, as evidenced by the respondent regarding the dismissal as 'inevitable' and 'unsurprising'. 1. The dismissal was harsh given the personal circumstances of the applicant and the consequences of him losing his job. The respondent's case 1. The respondent relied upon a statement from the decision maker, Superintendent David Driver. In addition, she relied upon statements from two Sydney Rail employees who witnessed the event of 22 February 2022, namely Mr Quoc Dat Ha and Mr Ameniasi Naivogo. All the respondent's witnesses were cross-examined at the hearing. 2. The respondent filed a Case Outline for the Respondent on 24 March 2023. A succinct summary of the respondent's case was handed to the Commission at the hearing. Counsel for the respondent also delivered final oral submissions before the Commission. 3. In summary, the respondent argued that the application should be dismissed for the following reasons: 1. The misconduct of 22 February 2022 was objectively serious, though not "the crime of the century". It was an assault, even if the applicant was not charged with that offense. The conduct constituted was "utterly inconsistent" with the Statement of Values and the Standards of Professional Conduct (the Values and Standards). It matters not that the conduct occurred outside of work. 2. The misconduct was the latest in a series of angry outbursts and incidents of abusive and disrespectful behaviour. The applicant had previously been dismissed for engaging in misconduct by yelling and swearing at his supervisors, as considered in Fleming. It was conceded that "it is not irrelevant that the last formal disciplinary episode, the last episode of misconduct, so far as the formal record shows occurred some years ago in 2016 and that there is, certainly not in our material, any indication of any formal discipline, following reinstatement": Tcpt, 11 May 2023, p 10 ln (19)-(22). 3. The applicant was on notice that he would be dismissed if he engaged in conduct such as what occurred on 22 February 2022 by the decision in Fleming, and in particular Commissioner Murphy's comments at [153]-[155] as set out above at [29]. It was submitted that he instead sought to rely upon the decision in Fleming as a vindication of his previous conduct. 4. The applicant's responses to the investigation process and in the proceedings did not acknowledge wrongdoing, nor indicate contrition or insight. The tenor of his response was to seek to justify his behaviour, such that his conduct was understandable given the circumstances he was confronted with. 5. The Commission and the respondent would have no confidence the applicant would not repeat the behaviour in the future. The applicant offered nothing to indicate that he would behave differently in the future. The conduct occurred in the face of the warning issued by Commissioner Murphy in Fleming. 6. While relevant, the applicant's long service, specialised skills, and age "cannot carry the day" and do not excuse repeated misconduct and repeated failure to comply with the Commissioner's expectations. 1. At the hearing, counsel summarised the case for the respondent as follows (Tcpt, 11 May 2023, p 10 ln (24)-(30)): "The upshot of all that, on our view of things, is that although there might be a legitimate question as to whether the inherent seriousness of the conduct taken alone, without regard to the history, would justify a dismissal but when understood in its proper context and having regard to that relevant history, the fact of dismissal, in circumstances where the applicant was given, what he should've regarded as an absolutely final chance by [Commissioner Murphy], in that context, dismissal wasn't only appropriate but in evitable." Relevant legislation and principles 1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61 ("Danwer"): "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. I also note the observations of Commissioner Newall in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000: "6. The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465." 1. Section 88 of the Act sets out matters which the Commission may, in determining a claim, take into account. It is not necessary that the provision be reproduced. 2. To be entitled to any remedy under the Act, the onus is on the applicant to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 3. Where the dismissal of an employee is justified on the basis of an allegation of misconduct, as is the case here, it is for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at p 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at pp 83-84. In this matter, the relevant conduct that occurred on 22 February 2022 is not in contest. The parties are at odds as to whether it warranted dismissal taking into account all relevant matters. Consideration 1. In determining whether the dismissal was harsh, unreasonable, or unjust, it is appropriate to consider the nature of the misconduct alleged and the context within which it occurred. The applicant's employment history, his level of insight and contrition for his behaviour is also relevant. It is appropriate to consider the likelihood the applicant will engage in the same or similar conduct in the future. The applicant's personal circumstances and the impact the dismissal will have upon him is also relevant. 2. The respondent argued that the applicant's conduct on 22 February 2022 was objectively serious. The actions of the applicant were such that he could have but was not charged with assault. The episode was not fleeting, with the exchanges continuing for about one minute and the applicant choosing not to move on despite being called upon to do so by the workers. 3. It could not be said that the applicant posed a serious physical threat to the workers. Mr Naivago who gave evidence before the Commission presented as a man of significant physical stature when compared to the applicant. I accept the evidence of Mr Ha that he was present with six of his colleagues at the time of the incident, given he named each of them in his statement: Ha statement at [10]. There is no suggestion that anyone was physically hurt by the applicant pushing the barricade and throwing the empty foam cup. 4. That is not to say the applicant's conduct was not serious or without consequence. Mr Ha gave evidence that the applicant pushed the barricade on to his right shoulder which almost caused him to fall off his chair. He stated that he was threatened by the applicant's behaviour because he felt cornered where he was seated. Further, he was fearful that the applicant might use his umbrella he was carrying to swing at the group. Mr Naivogo observed Mr Ha after the incident and assessed that he was quite affected and upset. He asked Mr Ha if he was "ok". 5. Mr Ha gave evidence that after the incident he recalled feeling shocked and quite upset and was left wondering "Why did it happen to me, will it happen again." He took three days "critical incident leave" to recover and clear his mind. There is no reason to doubt Mr Ha's evidence about the impact of the event on him. The effect of the incident upon him was foreseeable. 6. The applicant stated that after the event, "I reflected upon what I had done and realised how stupid I had been." Stupid is a fair description of the applicant's conduct. I would add that it was offensive, unnecessary, and thoughtless. 7. I agree with the respondent that through his actions the applicant engaged in misconduct, which was inconsistent with the Values and Standards. Although the applicant was not wearing anything to identify him as an employee of the respondent when the incident occurred, he was still required to uphold the Values and Standards. Although serious, I do not consider the conduct to be of such a nature that it would alone be sufficient to justify the termination of the applicant's employment. 8. The respondent submitted that the misconduct was the latest in a serious of angry outbursts and incidents of abusive and disrespectful behaviour by him. The applicant's past conduct history, including the misconduct found in Fleming is relevant in an assessment of the fairness of the dismissal. There are similarities in the conduct exhibited by the applicant on 22 February 2022 and that which he engaged in during November 2015 and January 2016. All the incidents involved the applicant losing his temper and being disrespectful towards other people, in circumstances where he felt genuinely aggrieved. It is worrying that the applicant, who has considerable life experience, does not seem to have developed an ability to control his emotions and make better choices when confronted with perceived injustices. The applicant in his response in the disciplinary process sought to externalise blame for his actions in 2015 and 2016, along with the 22 February 2022 incident, rather than taking full responsibility for his failings. 9. I reject the applicant's submission that the warning given by Commissioner Murphy in Fleming was irrelevant because it was specific to conduct occurring only in the workplace. Even if it was not expressly stated, the decision in Fleming put the applicant squarely on notice that his conduct and behaviour needed to improve. However, it is important to reflect that more than six years had elapsed since the events leading to Commissioner Murphy's decision and the 22 February 2022 incident. There is no evidence of any performance or misconduct by the applicant during this period. 10. I agree with the respondent that the applicant's references to the decision in Fleming in his response to the show cause letter, gave the impression that he felt vindicated by the decision. However, the applicant gave evidence under cross-examination to the effect that he was embarrassed it: Tcpt, 11 May 2023, at p 35 ln (36). The applicant was not overt in demonstrating contrition or remorse for what occurred on 22 February 2022. He might be seen as expressing contrition through his acceptance of what he did and his full and voluntary admission about his wrongdoing both in his interview with Police and in the investigation process. However, as the respondent submitted, it is difficult to see what choice he had, given the event was captured on CCTV. The applicant in his response to the allegations gave considerable context to his conduct. However, in his reply to the show cause letter, he did state that it "in no way excuses my actions, but it puts into perspective what happened": (Letter from the applicant dated 18 November 2022, p 91 of Courtbook). In the same correspondence, the applicant referred to what had happened on 22 February 2022 as "regrettable". The applicant also stated in his statement in reply to Mr Ha's statement that, "I regret my actions and the effect they had upon Mr. Ha. At no time was it my intention to cause him any physical harm." 11. I agree with the respondent that the applicant's lengthy response to the allegations with reference to his short-term and long-term stressors was misplaced. It was boarding on ridiculous that the applicant would seek to contextualise his conduct with reference to stress caused by a workplace dispute about rostering practices. What was lacking in the applicant's responses in the investigation and his evidence before the Commission was any illumination on what he had learned about himself and how he intended to change his responses to situations he found stressful in the future. I empathise with the respondent's concern that he may engage in similar conduct in the future. However, I do not think it is fair to conclude that he will not behave appropriately in the future, given a final opportunity to do so. Further, I do not accept that the applicant presents as an unacceptable risk to the workplace: see statement of Mr Driver at [12](d). 12. I reject the applicant's submission that the dismissal was unreasonable and unjust because it was "dishonest, disrespectful, and unfair" and contrary to the Standards of Professional Conduct to increase the severity to the sanction during the investigation process. There was no basis to accuse the respondent of dishonesty. A decision was made during the disciplinary process to consider termination of the applicant's employment. The applicant was given notice that the potential outcome had been reviewed and provided with an opportunity to respond to it. There is nothing improper, disrespectful, or unfair about what the respondent did. 13. I am of the view that while serious, the conduct that occurred on 22 February 2022 is not sufficiently grave to warrant the applicant's dismissal, even when considered with the applicant's employment history and his responses to the incident. The evidence of the applicant's personal financial expenses was not sufficient to form a proper understanding of his circumstances. However, I have concluded that the applicant's age and the specialised nature of the role he occupies will present him with challenges in gaining new employment if his dismissal is upheld. He is also an employee of notable tenure. Again, the applicant's poor work history is relevant, but a considerable time has elapsed since he last engaged in behaviour warranting disciplinary action. On balance, I find that the termination of his employment was harsh for these reasons. It was a disproportionate response to his misconduct and although his responses were less than impressive, they are an insufficient basis to make an otherwise unfair dismissal, fair and proportionate. 14. I turn to consider the appropriate remedy. The primary remedy in unfair dismissal proceedings is reinstatement and that is what the applicant seeks: s 89 of the Act. I have considered the evidence of Mr Driver that he lacks confidence that the applicant will not engage in the same or similar behaviour in the future. In my view, it would be unfair to deny the applicant an opportunity to demonstrate otherwise. I do not believe the applicant poses a significant risk to the workplace. There was no direct evidence before the Commission from Mr Grant Healy, Superintendent, the applicant's Unit Manager to support a submission that it was impracticable to reinstate the applicant if he was successful in these proceedings. 15. The applicant should be restored to his position with the respondent. It is appropriate that the respondent issue the applicant with a final warning given his conduct of 22 February 2022 and take such other management action it deems appropriate to address and improve the applicant's underlying behavioural issues. Given the misconduct by the applicant, I have decided, in my discretion, not to order any back pay to him. This will serve as a deterrent to the applicant to not engage in future misconduct in the workplace. 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 16 December 2022 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 5 June 2023. 3. No order is made for payment to Mr Fleming for the period between the time of his dismissal and 5 June 2023, 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). Janine Webster Commissioner Amendments 24 May 2023 1. Minor corrections made to the Paragraphs [5], [20], [36](5), [37], [53] and [57]. 2. Paragraph renumbering from Paragraph [11]. ********** 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: 24 May 2023