Industrial Relations Commission of New South Wales CITATION: NSW Fire Brigade Employees' Union and the NSW Fire Brigades [2010] NSWIRComm 1025 APPLICANT NSW Fire Brigades Employees' Union PARTIES: RESPONDENT NSW Fire Brigades FILE NUMBER(S): 742 of 2009 CORAM: Tabbaa C CATCHWORDS: Unfair Dismissal; Demotion; Continuing nature of the punishment; Severity of penalty; corrupt conduct; sustenance allowance; GREAT; Disproportionate impact of punishment. Industrial Relations Act 1996 LEGISLATION CITED: Fire Brigades Regulation 2008 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43 (13 October, 2009) NSW Fire Brigades v NSW Fire Brigade Employees' Union re bans IRC 4534 of 2002; IRC 4545 of 2002 HEARING DATES: 17.02.2010 DATE OF JUDGMENT: 9 June 2010 Mr J Nolan, Counsel for the Union LEGAL REPRESENTATIVES: Mr M Easton Counsel for the Respondent DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA, C 9 June 2010 Matter No IRC 742 of 2009 Notification under section 130 by New South Wales Fire Brigade Employees' Union of a dispute with the NSW Fire Brigades re: Severity of Penalty DECISION [2010] NSWIRComm 1025 1 The NSW Fire Brigades Employees' Union, on 20 May 2009, notified the Industrial Registrar of a dispute with the NSW Fire Brigades pursuant to section 130 of the Industrial Relations Act 1996. The dispute related to the alleged severity of a penalty issued to Michael Guymer, a member of the union, employed pursuant to the terms and conditions of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2008. BACKGROUND TO THE MISCONDUCT 2 Inspector Guymer, whilst in the position of Zone Commander, was asked to undertake relieving duties at Region North 1 in Port Macquarie because the Service required a senior and experienced Superintendent to sort out local management problems. After much cajoling, agreement was reached that he would undertake the relief assignment subject to him being able to return to Sydney as necessary as he had some professional issues with the Brigades that only he could deal with in Sydney. In addition, he needed to return on some weekends to spend time with his family because of family issues such as his son undertaking the HSC. 3 Inspector Guymer undertook relief work on three separate occasions commencing on 25 October 2007 and concluding on 5 June 2008. During the first relief period, he arranged accommodation for a month at Port Macquarie. On the two subsequent trips, he arranged accommodation in a furnished flat on a weekly basis as he found it more cost effective given the difficulty in obtaining accommodation generally in Port Macquarie. On each occasion, he submitted a claim at the end of the month-long relief period. 4 In June 2008, Inspector Guymer was successful in gaining a promotion from Zone Commander to Chief Superintendent. 5 On 28 October 2008, Inspector Guymer was advised by Deputy Commissioner John Benson that an anonymous complaint had been made against him and the matter had been referred to the Internal Audit Bureau. He was provided with a copy of the complaint and questioned about his relationship with Doug Williams (the Standards and Conduct Officer at the time and the unsuccessful candidate for the position Inspector Guymer occupied as Chief Superintendent) as well as his travel arrangements whilst relieving at Port Macquarie. 6 The complaint was that Inspector Guymer, while temporarily stationed as a firefighter for three stints at Port Macquarie in the period 25 October 2007 to 5 June 2008, was concerned directly or indirectly in corrupt conduct in that he claimed accommodation (sustenance) allowance on three separate occasions, totalling $4801.20, when he had no entitlement to do so. The misconduct arose from travel acquittal forms and vehicle running sheets he submitted which were incorrect. 7 Deputy Commissioner Benson urged him to be truthful and to co-operate stating that it was all about behavioural change and identifying system failures as opposed to penalising officers. He was also urged to offer restitution if any errors were identified. Inspector Guymer stated that he made every effort to follow that advice. 8 Inspector Guymer said that he sought additional advice from Assistant Commissioner Bob Dobson who advised him to submit, and actually assisted him to draft, a report acknowledging his error. He submitted that report on 22 December 2008 attaching a cheque refunding monies that he had incorrectly claimed. Deputy Commissioner Ken Thompson acknowledged receipt of the report during a telephone conversation on 24 December 2008. 9 Inspector Guymer acknowledged that his travel allowance claim was wrong. He pointed out, however, that it was a well established custom in the Brigade at that time for claims to be lodged for the entire month. He contended that he had lodged his claims on that basis without any real thought being given to the fact that he was defrauding the Respondent. 10 A letter of charge was forwarded to Inspector Guymer by the Respondent on 23 February 2009 setting out the details of the complaint and providing him with ten days in which to respond in writing advising whether the charge was admitted or denied. It was pointed out that if the charge was admitted, then a submission was required in writing by him, or on his behalf, in mitigation of penalty. 11 Inspector Guymer admitted the charges and proceeded overseas on scheduled leave on 25 February 2009. Upon his return in March 2009, he contacted the Respondent and was advised that he was suspended from duty. Following an internal investigation, he was found guilty of misconduct for contravention of a provision of Part 3, Fire Brigades Regulation 2003. In correspondence to him dated 15 April 2009, Commissioner Mullins advised as follows: ".... I am particularly concerned that the seriousness of this misconduct is compounded by your high rank and level of trust and if it was not for your prior exemplary service record, your 30 year tenure and several commendations I would be applying the maximum sanction (dismissal)." 12 Inspector Guymer was demoted by two ranks to that of Inspector and advised that he would not be eligible to apply for any advertised merit based promotions for a minimum period of two years from the date of that determination or the date of any subsequent appeal. THE COMPLAINT 13 Inspector Guymer was required to relieve at Port Macquarie on the following occasions: 13.1 The period from 7 am on 25 October 2007 to 6 pm on 24 November 2007; 13.2 The period from 15 February 2008 to 14 March 2008; and 13.3 The period from 28 April 2008 to 23 May 2008. 14 Inspector Guymer gave evidence that he received approval from Chief Superintendent Lindsay, Area Commander, Regional North, stationed at Coffs Harbour on each occasion he needed to return to Sydney for the weekend. He stated that the latter had expressed concern about the car log showing constant trips back to Sydney because he did not want it to become general knowledge that he was being allowed to return home every weekend. Inspector Guymer said that, at Chief Superintendent Lindsay's instruction, when he completed the vehicle logs weekly, he recorded the mileage as zone business. Those logs were then forwarded to Chief Superintendent Lindsay for approval. Inspector Guymer emphasised that he never hid the fact that he was returning to Sydney because he took the opportunity, while in Sydney, to attend meetings at his usual command in Kogarah, to attend a conference in Sydney and to undertake general Brigade business. 15 In the transcript of the investigator's interview with Chief Superintendent Lindsay, the latter confirmed that he was aware, and had approved, each return trip to Sydney. He also confirmed that he had approved Inspector Guymer's travel back to Sydney by an official motor vehicle. 16 During those month-long periods, Inspector Guymer returned to his Sydney home on a number of occasions as detailed below. At the conclusion of each of the above periods, he submitted a claim for accommodation allowance for the period commencing the day of the forward journey until the day of the last return journey to Sydney. In other words, he claimed an accommodation allowance for periods when he was in fact at home. 17 Details of the claims made during those periods when no entitlement existed are as follows: Relief Period One: 25 October 2007 to 24 November 2007 Friday 26 – Monday 29 October, 2007: (a) The period from 2 pm to midnight when he arrived at his home in Sydney from Port Macquarie; (b) The whole of Saturday when he was in Sydney; (c) The whole of Sunday when he was in Sydney; and (d) The period between midnight until about 5.30 am on Monday, 29 October 2007 when he left his home in Sydney and travelled to Port Macquarie. Notwithstanding the fact that Inspector Guymer used his NSW Government Credit Card (GCard) to pay an amount of $247.55 for accommodation and an evening meal in Coffs Harbour on 30 October 2007, he later claimed that when he submitted the claim for the above period. In addition, Inspector Guymer, in claiming the travel allowance for the above period, certified that his only mode of travel had been by NSWFB car when, in actual fact, he had travelled by air from Sydney to Port Macquarie on 25 October and return on 23 November 2007. Saturday 3 – Tuesday 6 November 2007 (a) The period from about 10.30 am on Saturday when he arrived at his home in Sydney from Port Macquarie until midnight on that date; (b) The whole of Sunday when he was in Sydney; (c) The whole of Monday when he was in Sydney; and (d) The period from midnight until about 5.30 am on Tuesday, 6 November when he left his home in Sydney and travelled to Port Macquarie. Sunday 18 – Tuesday 20 November 2007 (a) The period from whatever time on Sunday when he arrived at his home in Sydney from Port Macquarie until midnight on that date; (b) The whole of Monday when he was in Sydney; and (c) The period from midnight until about 6.30 a.m. on Tuesday when he left his home in Sydney and travelled to Port Macquarie. Friday 23 – Saturday 24 November 2007 (a) The period from whatever time on Friday he arrived at his home in Sydney from Port Macquarie until midnight on that date; and (b) The period from midnight until 6.00 am on Saturday when he was in Sydney. Relief Period 2: 15 February 2008 to 14 March 2008 Friday 15 – Monday 18 February 2008 (a) The period from 8 am until midnight on Friday when he was in Sydney; (b) The whole of Saturday when he was in Sydney; (c) The whole of Sunday when he was in Sydney; and (d) The period from midnight until about 5 am on Monday when he left his home in Sydney and travelled to Port Macquarie. Friday, 22 – Monday 25 February 2008 (a) The period from about 2.30 pm on Friday when he arrived at his home in Sydney from Port Macquarie until midnight on that date; (b) The whole of Saturday when he was in Sydney; (c) The whole of Sunday when he was in Sydney; and (d) The period from midnight until about 5 am on Monday when he left his home in Sydney and travelled to Port Macquarie. Wednesday 5 – Monday 10 March 2008 (a) The period from about 2.30 pm on Wednesday when he arrived at his home in Sydney from Port Macquarie until midnight on that date; (b) The whole of Thursday when he was in Sydney; (c) The whole of Friday when he was in Sydney; (d) The whole of Saturday when he was in Sydney; (e) The whole of Sunday when he was in Sydney; and (f) The period from midnight until about 11.30 am on Monday when he left his home in Sydney and travelled to Port Macquarie. Relief Period 3: 28 April 2008 to 23 May 2008 Monday 28 April 2008 (a) The period between 7 am and about 12.30 pm. He claimed he left his home at 7 am when he appears to have left his home in Sydney at about 12.30 pm. Friday 9 May – Monday 12 May 2008 (a) The period from about 11 am on Friday when he arrived at his home in Sydney from Port Macquarie until midnight on that date; (b) The whole of Saturday when he was in Sydney; (c) The whole of Sunday when he was in Sydney; and (d) The period from midnight until about 8.15 am on Monday when he left his home in Sydney and travelled to Port Macquarie. Friday 16 May – Monday 19 May 2008 (a) The period from about 4 pm on Friday when he arrived at his home in Sydney from Port Macquarie until midnight on that date; (b) The whole of Saturday when he was in Sydney; (c) The whole of Sunday when he was in Sydney; and (d) The period from midnight until about 5.30 am on Monday when he left his home in Sydney and travelled to Port Macquarie. Friday 23 May 2008 (a) The period from about 8.30 am on Friday when he arrived at his home in Sydney from Port Macquarie until 5 pm on that date. POLICE CHARGES 18 Inspector Guymer was arrested on 2 June 2009 and charged with a breach of Section 178 BB of the Crimes Act 1900 in that he made false statements to obtain monies. The matter was listed before his honour, Magistrate Maloney, at the Downing Centre Local Court on 7 July 2009 at which time the Applicant pleaded guilty. His Honour was advised of the cost implications of his demotion in terms of salary, superannuation entitlements, mortgage repayments and the chance of obtaining any further promotions within the service given his age at the time the embargo is lifted. 19 Inspector Guymer was found guilty of the offence and ordered to pay restitution to the NSW Fire Brigades. In ordering that no conviction be recorded pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999, his honour provided the following reasons: "He's given so much for so long for so many years in so many varied circumstances and advanced the careers of quite a number of good men ... he's going to suffer tremendously both in loss of dignity - his pride's taken an awful battering - and he's going to lose financially. he's just had to sell his house in which he's been his whole life. So I think he's suffered enough. I WON'T VISIT A CONVICTION UPON HIM. He's been a good man. I won't wound him anymore....If he had been anything other than what he was he wouldn't have got it - other than what he's done as long as he'd done it for. It's his .... record that saved him and only his record...." APPLICANT'S SUBMISSIONS 20 The Union advised that it was not contested that Inspector Guymer was guilty of misconduct. The dispute concerned the severity of the penalty that was imposed by the Respondent. The Union contended that it was inappropriate having regard to the following factors - the nature of the incident, the disproportionate impact financially on Inspector Guymer's reputation, career and health, the history of discipline within the Brigades and the principles underpinning public sector disciplinary provisions. 21 The Union pointed out that the penalty introduced two "first evers" - it was the first time that the Commission has demoted any firefighter more than one rank and it was the first time the Commissioner for the Brigades has maintained an open-ended demotion. 22 In relation to the financial impact of the penalty on Inspector Guymer, the Union highlighted the following points: 22.1 Inspector Guymer repaid $4872.12 to the Respondent; 22.2 Inspector Guymer's legal fees in defending the Local Court matter amounted to $5280; 22.3 The total financial impact of the demotion was estimated at $480,185 comprised of: 22.3.1 A reduction in pay of $29,000 per annum. The actual monetary loss he expected to incur between the date of the demotion and age 60 was estimated at in excess of $163,488 based on the wages received as at the June 2009 award rates; 22.3.2 A consequential reduction in his leave entitlement from $151,066 to $112,403; 22.3.3 A consequential reduction of $741.40 per fortnight in his pension ($19,276 per annum); 22.3.4 He could no longer afford his mortgage repayments and therefore sold his home and purchased premises elsewhere in order to halve those repayments. The downgrade has led to a third adult child having to find alternative accommodation; 22.4 Once the embargo on applying for promotions is lifted, Inspector Guymer will be 57.5 years old. There was, therefore, little chance of gaining such promotions prior to his retirement at age 60, given the limited opportunities for promotion and the presence of this offence on his record. 23 In relation to the emotional impact of the investigation and subsequent penalty on Inspector Guymer, the Union highlighted the following points: 23.1 Despite making several requests for an opportunity to make oral submissions to the Internal Audit Bureau, the Respondent denied him such opportunity which would have resulted in nipping the allegation of credit card fraud in the bud; 23.2 Whilst Inspector Guymer was overseas on leave, he was informed that the Media had been ringing his parents. In addition, a Radio Talk Show host and Commissioner Greg Mullins had, on 11 March 2009, had made public the allegations against him, including credit card fraud. Those matters had caused his family and his parents significant embarrassment; 23.3 The first opportunity he was provided to make representations to the Respondent regarding the charges was 1 March 2009. As a result of those representations, the allegation of credit card fraud was withdrawn on 9 April 2009. He pointed out that no attempt was made by the Respondent or Commissioner Mullins to publicly, or at the very least internally, withdraw the allegation of credit card fraud; 23.4 The damage to his reputation and emotional state was further exacerbated when Steve Whan, the Minister for Emergency Services, in a radio interview conducted on 21 July 2009, stated that Inspector Guymer's demotion was as a result of credit card fraud; 23.5 During the period from October 2008 to February 2009, he was threatened with a severe reprimand if he involved the Union in the matter; 23.6 When he commenced work in the demoted position, he was not given any duties for a period of two weeks. He was forced to seek medical advice and support at that time; 23.7 During the week of 20-24 July 2009, there were a number of radio broadcasts regarding allegations of sexual assault of a firefighter in 1985 and cover ups within the Service. Inspector Guymer was personally named as being involved which further stained his reputation and damaged him emotionally. In the absence of any support from within the Service, he was forced to once again seek medical support. He was diagnosed with stress and depression and provided with a medical certificate indicating that he was unfit for work. The Respondent's insurer rejected his claim for workers' compensation in that regard. 24 Inspector Guymer acknowledged that he had behaved foolishly, offered recompense as soon as possible and apologised to the Commissioner for the embarrassment he had caused him and the Brigades. He explained that his rationale for making the claims was flawed and based on lack of knowledge of entitlements. He said that he had learnt from his mistake and emphasised that he has been, and remains, a dedicated member of the Brigade. The Union went on to refer the Commission to precedents in relation to penalties applied within the Brigades in order to emphasise the severity of the penalty meted out to Inspector Guymer. Ms Gemma Lawrence, an Industrial Officer with the NSW Fire Brigades Employees' Union tendered an affidavit in which she deposed that she had researched previous cases of demotion within the NSW Fire Brigades. In the list of six instances she found since 1995, it was obvious that the penalty applied to Inspector Guymer was the most onerous. It was submitted by the Union that each of those demotions was for a set period and resulted in an automatic re-promotion at the end of the determined period. The Brigades had conceded that to do otherwise would constitute an extension of the punishment. 25 The Union concluded that the treatment meted out to Inspector Guymer was out of step with previous practice in that there is no guarantee that he will ever return to Superintendent or Chief Superintendent. RESPONDENT'S SUBMISSIONS 26 It was submitted on behalf of the Respondent that there were three issues to be considered in the present circumstances. Firstly, whether or not the Commission should entertain the application at all bearing in mind that his representative failed to inform the Local Court that he had filed an application for relief in the Industrial Commission of NSW. Secondly, whether the Commission has power to make the orders sought by the Union; and thirdly, whether the Commission should intervene at all considering the circumstances in which Inspector Guymer was demoted. The Commission's discretion to deal with the matter 27 The Respondent reminded the Commission that Inspector Guymer admitted misconduct, including criminal conduct. His union filed the dispute notification with the Industrial Relations Commission prior to the matter being heard in the Local Court although the criminal proceedings were determined first. Nevertheless, Inspector Guymer and his counsel left out a key factor from the information provided to the Local Court - the fact that the IRC proceedings were seeking to reverse or reduce the effect of his demotion. The Respondent argued that, while not technically estopped, it was a matter of candour to the Court and the expectation that a jurisdiction will be advised of all pertinent matters in other jurisdictions. 28 Inspector Guymer was successful in his application for a s 10 dismissal in the Local Court. There was no doubt that the Magistrate took significant account of Inspector Guymer's reduction in rank, the annual reduction in salary and superannuation benefits, his inability to be promoted for two years, the unlikelihood of being able to achieve promotion once the embargo is lifted because of his age, and the severity of the punishment in granting the section 10 dismissal. 29 The Respondent submitted that the Commission has a discretion to protect its own processes from abuse and it ought to exercise that discretion having regard to the requirements of ss 153 and 146 (2) of the Industrial Relations Act 1996 - that is, to act according to equity and good conscience and to take into account the public interest in the exercise of its functions. The Respondent cited Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43 (13 October 2009) as authority for the submission that if Inspector Guymer's claim is allowed to succeed or even proceed in this jurisdiction, it would "bring the administration of justice into disrepute among right-thinking people". The Commission's power in the matter 30 The Respondent submitted that Inspector Guymer was demoted by virtue of the authority of Clause 46 (1)(d) of the Fire Brigades Regulation 2006 and was therefore effective at law. 31 It was submitted that the specific powers available to the Commission pursuant to Part 2 of Chapter 3 do not empower it to order the Respondent to "set aside" a demotion and that GREAT is the only tribunal specifically empowered to make such an order. 32 It was argued that Inspector Guymer cannot argue that he has been dismissed from his position having regard to the fact that he has continued in his employment and has, prima facie, accepted the demotion. He is asking that he continue his employment in the lower rank but only for a defined period. The Merits of the Claim 33 The Respondent pointed out that Inspector Guymer was aware, on each occasion he completed the travel acquittal forms, that he was claiming between $1000 - $2000 worth of allowance to which he had no entitlement. His conduct amounted to theft. Yet he submitted the claims without any apparent guilt or remorse. It was submitted that it was extraordinary for a senior officer, on his own admission, not to have felt any guilt or ethical shame until he was faced with the allegation. It was clear from the evidence that, had no complaint been made, Inspector Guymer would have kept the money. 34 Although Inspector Guymer confessed immediately the allegation was put to him and he pleaded guilty in the Local Court, the Respondent held concerns about how he would perform in a senior rank because it was felt that the admission he made was carefully worded. It was submitted that his excuses reflected poorly upon his character and his capacity to be in position of trust and responsibility. The Respondent expected him, as a senior officer, to be able to discern between doing what is right and what others may consider to be "acceptably dishonest". The Respondent cited from a Recommendation by his Honour Justice Boland (as he then was) in Matter No IRC 4534 of 2002 and 4545 of 2002 [5 September 2002): Firefighters hold a special position in the community and they are regarded with a high degree of trust and respect by the community. If they betray that trust and respect in carrying out their role in such a manner as to warrant swift removal it is appropriate that the Commissioner have the power to do so, subject to the requirements of procedural fairness and review by the relevant tribunal. 35 Inspector Guymer, prior to engaging in his fraudulent conduct, had been involved in disciplinary proceedings for other officers. He was also involved in mentoring junior officers which made his conduct, in the view of the Respondent, even more intolerable. 36 The Respondent submitted that the Union's comparison of Inspector Guymer's circumstances with other officers accused of misconduct was superficial and simplistic. In addition, the Union's submissions about the public and media clamour surrounding the breaking news of his misconduct was an unhelpful distraction. 37 Finally, the Respondent submitted that Inspector Guymer should consider himself fortunate that he was not dismissed considering that his misconduct was serious and wilful. The Local Court had also expressed that opinion. The Respondent had taken into account all mitigating factors in arriving at the decision not to dismiss Inspector Guymer. Whilst it was conceded that the consequences flowing from his demotion are significant, they are not so extreme that the Commission should intervene to set it aside. APPLICANT'S SUBMISSIONS IN REPLY 38 It was submitted on behalf of the Applicant that a dispute about the demotion of an employee is an industrial dispute within the Industrial Relations Act 1996. Therefore, the Commission is empowered to make any order, or award or direction that it sees fit in connection with the current dispute relating to the demotion of Inspector Guymer. 39 It was submitted that Inspector Guymer's admission and excuses which he proffered should be accepted in the light in which they were made without "slicing and dicing and examining them microscopically" as lawyers tend to do. It was pointed out that Inspector Guymer had admitted his guilt on each occasion and had described his own behaviour as "unethical". It was also important to note that Commissioner Mullins and Deputy Commissioner Benson were both satisfied with the degree of contrition he demonstrated and the consistency of his responses. 40 It was further submitted that Inspector Guymer should not be blamed for the fact that his barrister did not make a disclosure to the Local Court in relation to these proceedings. A reading of the transcript revealed that the Magistrate was aware that there was an industrial dimension to these matters typically. The concluding paragraph in that transcript confirmed that the pre-dominant and prevailing factor in the Magistrate's mind at the time the matter was dismissed was Inspector Guymer's past record. CONSIDERATION The Commission's power in the matter 41 Clause 46 (1)(f) of the Fire Brigades Regulation 2008 provides that the Commissioner may deal with a disciplinary matter in any one or more of the following ways: (a) by a caution or reprimand; (b) by imposing a fine not exceeding 10 penalty units; (c) by revoking his appointment to a position; (d) by demotion; (e) by terminating his employment or service. 42 The Respondent relied on the views expressed by His Honour, Boland J, as he then was, in Matter IRC 4534 of 2002 and 4545 of 2002 [5 September 2002], Firefighters hold a special position in the community and they are regarded with a high degree of trust and respect by the community. If they betray that trust and respect in carrying out their role in such a manner as to warrant swift removal it is appropriate that the Commissioner have the power to do so, subject to the requirements of procedural fairness and review by the relevant tribunal. 43 I accept and adopt the view expressed by his honour. I accept that Clause 46 (1)(f) empowers the Commissioner for the Brigades to apply any one or more of the disciplinary measures listed above. I do not, however, accept the submission by the Respondent that the GREAT is the only tribunal that is authorised to review a determination made pursuant to that section. 44 Subsection (1) of Section 136, Arbitration of Dispute, of the Industrial Relations Act 1996, provides that the Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute; (b) make or vary an award under Part 1 of Chapter 2; (c) make a dispute order under Part 2; (d) make any other kind of order it is authorised to make (including an order made on an interim basis). 45 I agree with the Union that a dispute about the demotion of an employee is an industrial dispute within the Industrial Relations Act 1996. There is no provision in Part 2 of Chapter 3 that would prevent the Commission from dealing with an industrial dispute relating to the demotion of a firefighter. 46 It is noted that Inspector Guymer accepts that his misconduct is deserving of disciplinary proceedings. He has accepted the demotion, having regard to the fact that he has continued in the employment of the Respondent at the lower rank. The Commission is not being asked to set aside that demotion. The Union does not argue that Inspector Guymer has been dismissed from his position. The Union considers that the penalty imposed by the Respondent is inappropriate having regard to the nature of the incident, the disproportionate impact financially on Inspector Guymer's reputation, career and health, the history of discipline within the Brigade and the principles underpinning public sector disciplinary provisions. The Commission is being asked to make a recommendation or give a direction to the Respondent regarding the demotion being for a defined period of time following which Inspector Guymer would be eligible for promotion to the first available vacancy of Chief Superintendent without having to apply for merit selection. 47 In my view, the Commission is empowered to review a determination made pursuant to section 46 (1)(f) by the Commissioner for Brigades. The Nature of the Incident 48 The Respondent argued that Inspector Guymer's conduct was not, as he suggested, mere "foolish behaviour" or behaviour "based on a lack of knowledge of entitlements". Inspector Guymer acknowledged that he knowingly made the fraudulent claims in order to obtain a financial benefit. The Respondent reminded the Commission that Inspector Guymer pleaded guilty in the Local Court to each element of the offence. 49 The Respondent submitted that it lost confidence in Inspector Guymer upon realising that he risked his position of trust and responsibility for such a short term gain. In addition, the Respondent expected, bearing in mind his high-ranking position as Zone Commander, that Inspector Guymer would be able to discern between right and wrong and what low-ranking short-term employees consider to be "acceptably dishonest". 50 It is noted that, during cross-examination, Inspector Guymer acknowledged that he knew, at the time he completed the forms, that he should not be claiming for the periods when he returned to Sydney. I accept the submissions made on behalf of the Respondent in that regard. Nevertheless, I believe that, given time, Inspector Guymer can regain the Respondent's confidence in him. Procedural Fairness/Natural Justice 51 The Respondent argued that Inspector Guymer was afforded the common law principles of natural justice and procedural fairness. Inspector Guymer was given two opportunities to make written submissions including materials that he wished the Commissioner for the Brigades to take into consideration in determining the matter. 52 The Respondent took into account the following considerations in arriving at recommendations in relation to the penalty to be imposed: 1. Prior exemplary service record; 2. First offence; 3. Early guilty plea obviating the need for a formal inquiry; 4. Character references from reputable persons; 5. Contrition; 6. Retribution; 7. Annual financial loss to be incurred by demotion; 8. Age and family circumstances; 9. Mortgage commitment; 10. Need to sell family home if reduction in annual salary; 11. Duration of Service; 12. Distinguished Service with the Brigades; 13. No prior disciplinary matters; 14. 2800 hours accumulated sick leave; 15. Humiliation and shame suffered on FBEU website; 16. Investment made in him by the Brigades; 17. Unlikelihood of committing same offence in the future. 53 In arriving at the level of penalty to be imposed, the Respondent considered that: · The likelihood of Inspector Guymer re-offending was negligible; · Inspector Guymer has been punished significantly, including his public humiliation; and · The need existed to make an example out of him in order to send a strong message to other firefighters and to produce a culture change. 54 The recommendations made to the Commissioner for Brigades were as follows: 54.1 That the Commissioner terminate the employment and service of Chief Superintendent Guymer as a firefighter pursuant to Clause 46 (1) (f) of the Regulations 2008; 54.2 That the Commissioner suspend the termination of Chief Superintendent Guymer's employment and service as a firefighter pursuant to Clause 46 (1)(f) Fire Brigades Regulations 2008 owing to the considerations outlined above and submission of mitigation by Chief Superintendent Guymer; 54.3 That the Commissioner demote Chief Superintendent Guymer to the rank of Inspector from the date of this decision pursuant to Clause 46 (1)(e) of the Fire Brigades Regulations 2008; 54.4 That Chief Superintendent Guymer not be eligible to apply for any advertised merit based promotions for a minimum period of two years from the date of this decision; 54.5 That Chief Superintendent Guymer be advised in writing of the Commissioners determination with the applicable appeal time of 28 days to the GREAT; 54.6 Following this determination correspondence be forwarded to the ICAC of the outcome of this matter, including the review and intended implementation of changes in policies and/or procedures aimed at corruption prevention. 55 In approving the above recommendations, the Brigades noted that: # the punishment would have significant impact on his position, remuneration and superannuation; # the offence was compounded by the high rank, responsibility and level of trust in Inspector Guymer; # the mitigating factors – reform; punishment and deterrence. 56 The list of matters taken into account by the Respondent in arriving at recommendations as to action to be taken against Inspector Guymer is, in my view, exhaustive. 57 I also consider that the Respondent took into account all relevant factors in arriving at the penalty to be imposed. References/Commendations/Achievements 58 A number of references were tendered in the proceedings to demonstrate the strong support Inspector Guymer has from high ranking officers within the Brigades. The references were also relied on in the Local Court. They were very impressive and were very supportive of Inspector Guymer. 59 Whilst on that point, it is pertinent to note his commendable work/performance record with the Brigades. Set out below is a chronology of his progress up the ranks within the Service. It is noted that he achieved his promotions on the basis of his proven record as he has no tertiary qualifications: 1978 Commenced employment as firefighting officer 2001 - 2008 Manager Training, South Region Zone Commander, South (ZCS) 6 Zone Commander, South (ZCS) 1 25 October 2007 Relief - Region North 1, Port Macquarie February 2008 Relief – Region North 1, Port Macquarie April 2008 Relief – Region North, Port Macquarie June 2008 Chief Superintendent 60 It was not disputed that Inspector Guymer has a commitment to his work and to his employer. He has accumulated 2800 hours in sick leave entitlements. 61 His willingness to comply with directions has seen him transferred to a number of under performing commands over the past 10 years - at the expense of his family life. 62 He has mentored junior officers who are now Inspectors and Superintendents. 63 He has championed Pre-Incident Planning for several years. The Commission was advised that he spent several hundred hours, the majority being in his private time, managing and providing oversight of that system - a system which has, and will continue to, significantly reduce the risk of death and injury among firefighters. 64 During his service, he received the following awards for his outstanding performance: Australian Fire Service Medal NSWFB Long Service and Good Conduct Medal with Clasp National Medal with Clasp Commendation for his actions in the 1994 Bushfire Emergency Commendation for his actions in the 1997 Thredbo Emergency Section 44 nominee or deputy nominee at major bushfires in both Sutherland and Ku-ring-gai local government areas Incident Controller at several major fires since his promotion to Superintendent The Disproportionate Financial Impact on Inspector Guymer 65 The Union listed the financial losses incurred by Inspector Guymer since the issue was uncovered. 66 The Union pointed out that the amount in question, $4801.20, was repaid immediately by Inspector Guymer. 67 The Union also pointed out that he had incurred $5280 in legal fees in defending the Local Court proceedings. 68 As far as the Commission is concerned, the refunded money never belonged to him. It belonged to the Respondent and was therefore returned to its rightful owner. As for the legal fees incurred, Inspector Guymer had committed a crime and was required to answer that charge in the Local Court. It is noted that his defence resulted in no conviction being entered against him in circumstances where he would have expected to incur a criminal record for the first time. 69 As to the financial impact of the demotion on Inspector Guymer, that is a separate matter that requires serious reconsideration. 70 I have described in the detail provided above, the break-up of the total financial impact of the demotion. The total financial loss is estimated at $480,185. 71 Inspector Guymer has had to downsize in order to reduce the mortgage payments on his home. The decision to sell his family home and buy a smaller home was not in the contemplation of Inspector Guymer and his wife prior to this incident. The disproportionate impact on Inspector Guymer's reputation and health 72 Inspector Guymer had a prior exemplary record with the Brigades. He had several commendations which I have described above. He made long, lasting friendships with high-ranking officials within the Service who provided him with references for the proceedings before the Local Court and the Industrial Commission. He had risen to the rank of Chief Superintendent when the misconduct he had committed in his previous position as Zone Commander was reported. 73 The reputation he had earned for himself over a period spanning 30 years took a downhill dive in a matter of months. He was investigated by the Internal Audit Bureau. The ICAC became involved and kept a watching brief on the progress of the investigation. The Media became aware of the allegation and the matter was the subject of a number of radio interviews on talk back shows causing his immediate family and his parents considerable embarrassment. Whilst he was on a period of annual leave overseas, the Media were in touch with his parents. 74 I empathise with Inspector Guymer in relation to the embarrassment experienced by his immediate family and his parents. As to the embarrassment caused to him by the admitted offence, he brought it on himself by his actions. He admitted in evidence that he was aware of what he was doing when he completed the claim forms. 75 I note, nevertheless, that the publicity covered issues other than the admitted offence and I will comment on them later in the judgment. History of discipline within the Brigades 76 The Union pointed out that the Department has never demoted a firefighter by more than one rank. The previous Fire Brigades Regulations (1997) specifically provided that "a termination of a firefighter's appointment to a particular rank operates to reduce the rank of the firefighter to the firefighter's previous rank". 77 The results of the research conducted by the Union and produced in the Commission are noted. It is noted that Inspector Guymer was the highest ranking amongst the six offenders on that list of six precedents. I also note the dissimilarities in treatment received by Inspector Guymer. 78 I have already stated a view that the offending behaviour is deserving of a more stringent disciplinary measure than would apply to someone in a lower rank in the echelon. 79 Two of the precedents involve similar circumstances to the present case and the disciplinary measures applied in both instances are particularly relevant to the present circumstances. A feature of the penalty in one of those precedents is a financial imposition of a continuing nature. In addition to the monetary fine imposed in the Local Court, that firefighter was demoted for a period of 12 months with the ability to apply for promotion and undergo a selection process at the conclusion of that period. I concur with the views expressed by the GREAT in relation to that feature: "...Such a penalty could be on-going as there would be some uncertainty as to when the appellant might be able to successfully obtain such a position again. That financial imposition and the possible continuing nature of it would visit punishment upon the appellant. That is inconsistent with the objects of disciplinary proceedings... the penalty of both reduction in rank and removal from the position is far too severe...the penalty is allowed in part. The appellant is to be returned to his position as Operational Support level 3 forthwith. The Tribunal declines to set aside the penalty of demotion in rank. By allowing the twelve months demotion to stand this will mean that the appellant may return to the rank of Inspector on the next available occasion after May 2003." 80 In the second pertinent precedent, the Brigades imposed a monetary fine and demoted the firefighter. However, he was promoted to his previous classification a year later prior to being medically retired. Conclusion 81 One cannot escape the fact that the same mitigating factors need to be taken into account at every stage of the proceedings - in the determination of the Commissioner for Brigades as to the appropriate penalty to be applied and in any review by the GREAT and/or the Industrial Relations Commission as to the appropriateness of the penalty imposed by the Respondent. They are also factors that are taken into account by the Local Court, in addition to the offenders criminal record, if any. It follows that just because those factors were taken into account in the Local Court in criminal proceedings, it does not preclude this Commission from taking them into account in civil proceedings. 82 I accept that Inspector Guymer should have made a full disclosure to the Local Court Magistrate in relation to the existence of these proceedings. Nevertheless, I do not consider the non-disclosure to be fatal to these proceedings. Disclosure would not have resulted in the matter been stood over in the Local Court pending the outcome of these proceedings. Firstly, Inspector Guymer had pleaded guilty in relation to all of the elements of the offence. Secondly, even if he had pleaded not guilty and the matter had been set down for hearing in the Local Court, the outcome in both jurisdictions would not necessarily be the same. The standard of proof applicable in both jurisdictions is markedly different. A "Not Guilty" finding in the Local Court may not necessarily result in the same outcome in this jurisdiction on the civil standard of proof. 83 During discourse between Counsel for Inspector Guymer and the Magistrate, his honour brought up the issue of other firefighters dismissed by the Respondent and reinstated by the Industrial Relations Commission of New South Wales for reasons that he could not comprehend. That reinforces two things - firstly, the differing outcomes in both jurisdictions as a result of the tests applicable to each jurisdiction; and secondly, the Magistrate was aware of the possibility of further relief being available in this jurisdiction. In my view, that would indicate that it made no difference to the outcome before his honour whether or not further relief was available to Inspector Guymer in this jurisdiction. 84 In concluding the proceedings before him, his honour told Inspector Guymer that he was lucky he still had a job as an Inspector. The transcript of the proceedings indicated that his honour noted that the monies had been repaid, that Inspector Guymer had dedicated his life to the Fire Brigade at the expense of his family life and that he had suffered tremendously both in loss of dignity and financially. His honour concluded that it was his service record with the Fire Brigades that won him the section 10 dismissal: Well, he has given so much for so long for so many years in so many various circumstances and advanced the careers of quite a number of good men...He has been a good man. ... But if he had have been anything other than what he was he wouldn't have got it, other than what he has done as long as he has done it for. It's his career that saved him or his record that saved him and only his record, I mean in the Fire Brigades that is. 85 Inspector Guymer was responsible for mentoring younger officers. I accept that as Zone Commander, his rank would suggest that if the wrong culture had developed within the Service, it was incumbent on him to take action to correct that culture. Instead, his approach was to fit in with the alleged culture without giving any thought to the fact that he was defrauding the Respondent. 86 Inspector Guymer was subsequently successful in his application for promotion to Chief Superintendent. I note that he did not take the opportunity, whilst in that role, to address the culture or to refund the monies he had fraudulently obtained for the three periods. 87 It needs to be pointed out that, although the Respondent conceded that the system had been based on trust and that it has since put in place policies and procedures to tighten up the process for making such claims, there was no evidence before the Commission of the existence of such a culture. 88 Had the anonymous complaint not been made about him, it would be safe to conclude, in the absence of any evidence to the contrary, that Inspector Guymer would not have refunded the monies. 89 The misconduct was quite serious having regard to all of the circumstances and, in particular, the matters I have mentioned above. In my view, under normal circumstances, and in the absence of any mitigating factors, an incident such as this would warrant dismissal. 90 It should not come as a surprise to Inspector Guymer that the higher the rank of the offender in the circumstances of the present case, the greater the disciplinary measure that needs to be applied. The disciplinary measure not only needs to reflect a suitable penalty for the offence, it also needs to produce a culture change and send a message to other firefighters. 91 In my view, the size of the sum involved is immaterial. Whether the amount illegally claimed totals $20 or $4801.20, and whether it was refunded or not, it does not detract from the fact that it is fraud. It is not a trifling matter. The higher the position of the offender, the graver the offence and the greater the penalty that needs to be paid. 92 There is no doubt that severe embarrassment was visited on the Respondent and the Minister for Emergency Services when the issue was leaked to the media. As often happens, the media raked up other embarrassing incidents involving the Respondent. 93 Having said that, it is all the more reason why care should be exercised to ensure that consideration of the disciplinary measure to be applied in circumstances such as this is not influenced by the media attention the incident received. Nor should the subsequent approval/disapproval by the media of the ultimate disciplinary measure play any part in that consideration. 94 I accept that, in applying the disciplinary measures available to him, the Commissioner had to have regard to, amongst other things, the need for reform, punishment and general deterrence. Specific deterrence would not, I have no doubt, be necessary in the circumstances. I accept that the likelihood of Inspector Guymer ever re-offending is negligible. 95 The Union is being realistic when weighing up Inspector Guymer's chances of being able to gain a promotion at the conclusion of the embargo period of two years. I accept that his age at that time, the presence of this offence on his work record and the limited opportunities for promotion at that level of the hierarchy would negatively impact on his ability to gain a promotion prior to his retirement at age 60. 96 Inspector Guymer caused the Respondent severe embarrassment. The allegation of credit card fraud was brought up in radio interviews with the Commissioner for Brigades and the Minister for Emergency Services. I am not critical of those interviews because the allegation was a live issue within the Brigades. What I am critical about is the fact that, had Inspector Guymer been afforded the opportunity to make oral representations to the Internal Audit Bureau when he first requested to do so, he would have been able to nip that matter in the bud prior to those radio interviews. That allegation against him was subsequently withdrawn but not before further needless additional damage had been done to his reputation. 97 No evidence was put before the Commission to refute the claim that the withdrawal of that allegation had not been publicised either internally within the Brigades or externally. 98 In addition to the media hype about the allegation about the credit card fraud that was subsequently withdrawn, the waters were muddied by radio broadcasts regarding allegations of sexual assault of a firefighter in 1985 and cover ups by the Brigade. Inspector Guymer was mentioned as being involved. There is absolutely no evidence before the Commission of anything other than exemplary conduct by Inspector Guymer prior to the incident currently before the Commission. I accept that the allegation, made over the radio, would have caused him and his family severe embarrassment and emotional upheaval. 99 Having taken into account the totality of the evidence before the Commission, I make the following findings in the matter: 99.1 The demotion of Inspector Guymer was appropriate having regard to the matters taken into consideration in arriving at that decision. 99.2 The demotion by two ranks and for a period of two years is also appropriate having regard, amongst other things, to his position and level of responsibility within the Brigades at the time the offence was committed; 99.3 The requirement that he apply for merit based promotion at the conclusion of the two year period is far too severe a penalty when applied in conjunction with demotion by not one but two ranks and for a duration of not one but two years. The penalty is compounded by the fact that the chance of a merit based promotion is severely limited by his age, the presence of the offence on his work record and the limited opportunities for promotion at that level of the hierarchy. I accept, on the evidence of his previous work record/performance, that Inspector Guymer is capable of restoring the Respondent's trust and confidence in him over the two year period of his demotion. I do not accept that the damage cannot be repaired. DIRECTION 100 The Commission directs, pursuant to section 136 (1) of the Industrial Relations Act 1996, that Inspector Guymer be eligible to apply for merit based promotion after the conclusion of the first year of demotion. If he has not been able to secure such merit based promotion at the conclusion of his 2-year demotion period, then he be automatically elevated to one rank above the position of Inspector, when such a vacancy arises. I Tabbaa COMMISSIONER 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.