Industrial Relations Commission New South Wales Medium Neutral Citation: Ward v New South Wales Fire Brigades [2011] NSWIRComm 1019 Hearing dates: 6 December 2010; 14 December 2010 Decision date: 21 April 2011 Jurisdiction: Industrial Relations Commission Before: Macdonald C Decision: Unfair dismissal application dismissed Catchwords: UNFAIR DISMISSAL APPLICATION - Section 84 of the Industrial Relations Act 1996 - fire brigade industry - dismissal on four grounds of misconduct following internal inquiry - unfair dismissal application - onus and standard of proof - procedural fairness - substantive fairness - employer failed to make out its case for three of the four grounds of misconduct - one ground of misconduct made out - unfair dismissal application dismissed. Legislation Cited: Industrial Relations Act 1996 Fire Brigades Regulation 2008 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Jupiter General Insurance Company Limited v Shroff (1937) 3 All ER 67 National Union of Workers, NSW Branch (o/b Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Category: Principal judgment Parties: New South Wales Fire Brigade Employees Union (o/b Sue Ward) (Applicant) New South Wales Fire Brigades (Respondent) Representation: Ms G Lawrence and Ms Potter-Butler, Union Officials (Applicant) Ms L Iacumin and Mr S McMartin (Respondent) File Number(s): IRC 920 of 2010 and IRC 1013 of 2010 DECISION 1This decision concerns an application (IRC 2010/920) by the New South Wales Fire Brigade Employees Union ("the union") on behalf of its member Sue Ward for unfair dismissal against her former employer, Fire and Rescue NSW ("the employer"). At the time of her dismissal, the former employer was known as the New South Wales Fire Brigades. The unfair dismissal application was made pursuant to section 84 of the Industrial Relations Act 1996 (" the Act "). 2The union also filed a dispute notification pursuant to section 130 of the Act . That notification concerned the proposed termination of Sue Ward (IRC 2010/1013). 3Conciliation failed to resolve the matter between the parties. The matter was set down for hearing in Armidale (6 December 2010) and Sydney (14 December 2010). 4At the hearing the union was represented by Ms Gemma Lawrence and by Ms Potter-Butler. The union called the following witnesses: Ms Gemma Lawrence -- union official Ms Sue Ward -- former employee 5At the hearing, the employer was represented by Ms L Iacumin and Mr S McMartin. The employer called the following witnesses: Ms Sarah Hoskins -- employee Mr Robert Callow -- Station Officer Mr Craig Brierley -- Superintendent Mr Mark Whybro -- Assistant Commissioner Mr John Benson -- Deputy Commissioner 6The parties filed witness statements for the above named witnesses. However, the union did not put on any witness statements in reply. Consequently, the Commission could not readily ascertain where the union/Ms Ward partly or wholly agreed or disagreed with the respondent's case and the issues contained therein. 7The parties filed written submissions. As the case was one of dismissal on the ground of misconduct, the Commission required that the employer file its submissions first. The employer filed on 24 December, 2010. The union filed its submissions on 10 January, 2011 and the employer in reply on 14 January, 2011. BACKGROUND 8The employer provides fire protection, hazardous material response and non-fire rescue capabilities to the major cities, metropolitan areas and towns across rural and regional New South Wales. The employer has over 3500 permanent firefighters and 3400 retained firefighters and these are two distinct groups of employees within the employer's operations. These two categories of firefighters are employed pursuant to two different awards of the Industrial Relations Commission of New South Wales. 9Sue Ward was employed as a retained firefighter at Inverell. . 10Retained firefighters are not classified as full-time employees, part-time employees or casual employees. However, their employment classification is closest to a casual employee. They receive a fortnightly retainer and receive hourly and half hourly payments for attending incidents. They are required to reside within a small geographical radius from the station to which they attend for incidents. A permanent firefighter on the other hand, can be relocated into various geographical areas. 11Retained firefighter Sue Ward was appointed to the New South Wales Fire Brigades (as it was then called), on 1 February 1998. At the time of her dismissal, she was posted at 331 Inverell Fire Station. 12On 30 May 2009, another retained firefighter by the name of Sarah Hoskins who was also stationed at Inverell Fire Station, submitted her letter of resignation. In her letter of resignation, Hoskins alleged that she had been bullied and harassed by Sue Ward. That letter of resignation set off a chain of events that led to the dismissal of Sue Ward. 13A report by a Capt Bob Winkworth of 331 Inverell Fire Station, dated 15 June 2009, named Sue Ward as being involved in situations of conflict for a number of years. The report also stated that a number of resignations from retained firefighters at Inverell were from disgruntled employees who could no longer manage alleged intimidation, threats and defamatory remarks from Sue Ward. 14A preliminary enquiry into these allegations was held by Superintendent Gordon Boath pursuant to clause 42 (1) of the Fire Brigades Regulation 2008 ("the Regulations"). Sue Ward was advised of this enquiry process by letter of 6 July 2009. Sue Ward was interviewed on 5 August 2009. Supt. Boath's report was submitted on 14 August 2009 to Superintendent Brierley who was of the opinion that Sue Ward was guilty of misconduct and given the serious nature of the conduct, she should be suspended from duty. 15Sue Ward was suspended from duty on 25 August 2009, pursuant to clause 37 (1) (a) of the Regulations. 16On 9 September 2009, Sue Ward received a letter of charge. On 24 September, the union wrote on her behalf denying the charges. 17A formal enquiry was to be held in December 2009 but was rescheduled to the next year given insufficient time for the union and Ms Ward to prepare a defence. 18The formal enquiry took place on 22 and 23 February 2010. The enquiry was conducted by Asst Commissioner Mark Whybro. Both the employer and the employee were represented. The two-day hearing was transcribed. Sue Ward was represented by a solicitor. Part way during the second day of the formal enquiry, Sue Ward withdrew from the proceedings without having given oral evidence. She said she withdrew on advice from her solicitor. The employer disputed that the withdrawal was on advice from the solicitor. 19A report by Asst Commissioner Whybro, dated 19 April 2010, expressed findings and recommendations from that formal enquiry. As to the four complaints against Sue Ward, he found them proven and recommended her dismissal. 20Sue Ward received a copy of the report. Communications took place between her/the union and the employer over the ensuing months as to Sue Ward's future as a retained firefighter. On 25 August 2010, the union filed an application for threatened dismissal on behalf of Sue Ward. That application came before myself. On 30 September 2010, the employer wrote to Sue Ward notifying her that her employment had been terminated. FINAL SUBMISSIONS For The Employer 21The employer filed its final submissions on 24 December 2010. The main issues contained therein were as follows: (a) The termination of employment of retained firefighter Sue Ward was not harsh, unfair or unreasonable. (b) Sue Ward was terminated pursuant to misconduct and with notice. The employer accepted that it carried the onus of proving the said misconduct. It was submitted that the termination was not summary dismissal given that Sue Ward had been involved in a suspension, an enquiry process and its aftermath pursuant to the Regulations, for some time. (c) The termination of employment on 30 September 2010 by Commissioner Mullins of the NSW Fire Brigades, was due to Ms Ward being found guilty of misconduct based on four charges against her and that Ms Ward had lost the "trust and confidence" of Commissioner Mullins to carry out her duties. (d) Charges 1 to 3 related to behaviour that was subversive of discipline and included disrespect for authority and the use of objectionable language. Charge 4 concerned disregarding a lawful order. (e) Sue Ward was given procedural fairness throughout the process leading up to her termination of employment. (f) The employer opposed the application for reinstatement to the Inverell fire station. Re-employment to another fire station was not available given that a retained firefighter lived in the same geographical area as the fire station to which he or she is attached. An order for compensation was opposed. For The Union 22The union filed its written submissions on 10 January 2011. The main issues contained therein were as follows: (a) The dismissal of Sue Ward was harsh, unfair and unreasonable. The four charges were not satisfactorily proven against her and in the event she denies any wrongdoing. Further, the employer did not adhere to the principles of natural justice nor ensure procedural fairness throughout the investigation process. (b) Even if the charges were proven, the penalty of termination of service was too severe when taking into account all associated matters. (c) As to the substance of the four charges, the employer put forward the witnesses: Ms Hoskins and Mr Callow. As to the investigation process, the employer put forward the witnesses: Mr Benson, Mr Whybro and Mr Brierley. The employer cannot rely upon evidence in the current proceedings where the relevant person did not appear as a witness and could not have their evidence tested: Station Officer Mr Savage, Mr Trevithick and Capt Bob Winkworth. (d) The remedies sought by the union were the reinstatement of Ms Ward and back pay for the period of her suspension. Failing reinstatement, the union sought the maximum compensation of 26 weeks pay. Employer in Reply 23The employer filed its submissions in reply on 14 January 2011. The submissions contained a note that as of 1 January 2011, the employer had changed its name to "Fire and Rescue NSW". The main issues contained therein were as follows: (a) The weight of oral evidence presented by the employer's witnesses met the standard of proof required to substantiate the misconduct and justify the termination of Sue Ward. The evidence overall achieved the same result. The union said that evidence from those persons who did not give evidence could not be accepted. However, that is not so, given that the union filed the affidavits of those persons in the proceedings before the Industrial Relations Commission of New South Wales. Those affidavits had formed part of the evidence before the two-day enquiry conducted by the employer in to Sue Ward's conduct. (b) Sue Ward was not denied natural justice or procedural fairness. (c) The employer rejected the union's assertion that the suspension of Sue Ward was not in accordance with the process authorised by the Regulations. (d) The penalty of termination of employment was appropriate in the circumstances given her bullying and harassment, being disrespectful or insolent to a person in authority, her objectionable language and the loss of trust and confidence in Sue Ward by the employer. (e) All remedies being sought by the union were opposed. CONSIDERATION 24The Union submitted that the dismissal of Sue Ward was "harsh, unfair and unreasonable". The Commission notes that the Act uses a different terminology: "harsh, unreasonable or unjust" (section 84(1)) in respect of any unfair dismissal claim by an employee. The Commission will consider the union's case on behalf of Sue Ward against the statutory terminology/criteria. 25The union claims that the dismissal was unfair on both procedural and substantive grounds. Before considering those two grounds, the Commission will turn its attention to certain preliminary issues. Preliminary Issues Onus of Proof and Standard of Proof 26A difference of opinion arose between the parties about onus of proof, but based on whether the termination of Sue Ward was with or without notice. The union submitted that the termination was a summary dismissal - given the content of the dismissal letter which said the dismissal was with effect from the date of the termination letter. That meant immediate effect (Ex 2, Annex Y). There was no mention in the dismissal letter of payment for notice or in lieu of notice. 27The employer submitted that the dismissal was not a summary dismissal because Sue Ward had been terminated due to an investigation process which commenced in 2009 and concluded in September, 2010. By inference, it was being put, as the Commission understood it, that Sue Ward had had a lengthy notice period. If that inference be correct, then the Commission rejects that submission. There is a difference between being given notice of a termination decision that brings the contract of employment to an end and being given notice that an investigation will take place and being alerted sometime during that investigation that a possible outcome is termination. The latter scenario is not one where the employee has been given notice of a decision to end the contract of employment. 28Despite that difference of opinion on the foregoing facts, the parties are at one on the issue of onus. The union submitted that it was a summary dismissal and the onus is on the employer to prove that the facts existed to support the employer's decision to summarily dismiss Sue Ward: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83 ("Pastrycooks' case"). The employer conceded it was a misconduct termination and cited caselaw as to onus: National Union of Workers, New South Wales Branch (o/b Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at 449 ("Cuno's case). The latter case, being a full bench decision, cited with approval the decision in Pastrycooks' case. The full bench noted that Mr Khan in Cuno's case had been dismissed for serious and wilful misconduct but given payment in lieu of notice. Given that this payment had been made, the parties accepted in Cuno's case that Mr Khan had not been summarily dismissed. Despite that factual situation the full bench said, "...regardless of whether the dismissal was summary or by notice of payment in lieu of notice,..." the onus of proving an allegation of misconduct is on the party that alleges misconduct. The employer in the present case alleges that Sue Ward engaged in misconduct and therefore carries the onus to prove that the facts existed to support the employer's decision to dismiss her. 29Separate to onus of proof is the issue of standard of proof. 30As Sue Ward was dismissed with immediate effect (no notice), then the Commission is treating the dismissal as one of summary dismissal. The standard of proof required to prove that the facts existed to support the summary dismissal, is the balance of probabilities. That is, the employer in summarily dismissing Sue Ward has to prove that the facts existed, on the balance of probabilities, to support that summary dismissal. The above standard of proof required to be met by the employer is the Briginshaw standard of proof: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354-369, per Dixon J. The Status of Certain Evidence 31The other preliminary issue for consideration is the differing submissions of the parties as to whether some of the evidence is actually before the Commission for its deliberation. Thus, the union said that certain witnesses for the employer did not present themselves for cross-examination and therefore any of their material (witness statements, memoranda etc) could not form part of the Commission's deliberation. The employer argued otherwise - that is, the material had been filed by the union and had become evidence by way of being annexures to witness statements that had been marked as exhibits in the proceedings. 32The Commission concurs with the employer's submission. 33No doubt, the union filed all of the material pertaining to the investigation into the allegations against Sue Ward - the findings against her - the assortment of correspondence amongst various parties and so forth - in order to present a complete picture for the benefit of the Commission. But in doing so, all of that material became evidence once the covering witness statements (which included that material) of the union's witnesses became exhibits in the proceedings. 34Be that as it may, that evidentiary material associated with persons who were not called as witnesses, still needs to be evaluated as to what weight should be given to it. Thus, if the union did not challenge the evidentiary material of those non-witness persons, then that evidentiary material has more weight than the challenged evidentiary material of those non-witness persons. The challenge could be by way of oral and/or documentary rebuttal of assertions made in the evidentiary material of those non-witness persons. Procedural Fairness 35The union submitted that Sue Ward had been denied procedural fairness and natural justice during the investigation process and that this therefore constituted an unfair dismissal. The basis of the union's submission is that certain documentation was not provided to Sue Ward at the appropriate time. For example, it was asserted that none of the correspondence, containing the actual complaints against Sue Ward and which gave rise to the enquiry, were provided to her prior to 30 November, 2009. This documentation was provided some three months after her suspension from duty. Another example, but in a different vein, is the assertion by the union that "the die (sic, dye) had been cast" against Sue Ward by the employer during the investigation process and thus Sue Ward "had little hope of turning the opinion of the investigating officers to follow" (union's filed written submissions of 10 January, 2011, pp12 to 14). 36In its written submissions in reply, the employer rejected the claims of denial of natural justice and procedural fairness (filed 14 January, 2011, pp3 to 8). These claims were also dealt with in the employer's outline of submissions filed 22 November, 2010 (pp3 to 6). 37These employer submissions set out the investigation process into the complaints against Sue Ward. Thus: (a) Retained firefighter Sarah Hoskins tendered her resignation and in doing so raised issues against Sue Ward. This correspondence initiated an enquiry that became a formal investigation. (b) Sue Ward was made aware of Sarah Hoskins' complaints, by letter of 6 July, 2009. This was done pursuant to Clause 36 of the Regulations. (c) On that same day, 6 July, 2009, Supt. Gordon Boath was appointed to conduct a Preliminary Enquiry into workplace issues raised by various employees against Sue Ward. The appointment was made pursuant to Clause 42(a) of the Regulations. (d) Supt. Boath submitted his report on 14 August, 2009. He interviewed a number of personnel, including Sue Ward, about those workplace issues. His report concluded that Sue Ward had a case to answer in response to the allegations made against her. He recommended that formal proceedings should be initiated to substantiate or refute those allegations. (e) Supt. Brierley reviewed the Boath Report and formed the view that, prima facie, Sue Ward was guilty of misconduct (Ex 5, para 12). (f) Supt. Brierley telephoned Sue Ward on 25 August, 2009. He referred to Clause 37, Suspension of firefighter, of the Regulations. He put broad categories of complaints to her - for example, bullying and harassment. She was asked why she should not be suspended given that Supt. Brierley was considering that option. Having listened to her response, he decided to suspend her from duty and advised that a letter confirming the same would follow (Ex 5, para 13). (g) The suspension from duty letter is dated 26 August, 2009. Sue Ward was invited, pursuant to Clause 38 of the Regulations, to write within 7 days putting forward submissions in respect of that suspension (Ex 5, Annex. C). (h) Sue Ward confirmed under cross-examination that she was given the opportunity to respond to the suspension over the telephone and by correspondence (Tr 6/12/10 - p31, line 15 to 23). (i) Acting Commissioner, John Benson, confirmed the suspension of Sue Ward by letter dated 7 September, 2009 (Ex 5, Annex D) (j) Assistant Commissioner, Mark Whybro, wrote to Sue Ward on 9 September, 2009 advising that she had been charged with misconduct and setting out four complaints against her (Ex 8, Annex A). (k) Mark Whybro was appointed to head the Formal Enquiry into the complaints against Sue Ward, who was advised of the same by letter of 25 November, 2009 (Ex 8, Annex B). (l) The Formal Enquiry was scheduled for 14 and 16 December, 2009 but was deferred at the request of the union given insufficient time for the union and Sue Ward to prepare a defence (Ex 8, Annex C). This was agreed to by the employer and the Formal Enquiry was re-scheduled for 22 and 23 February, 2010. (m) Sue Ward was represented by a solicitor, engaged by the union, at the Formal Enquiry. On the second day of the Enquiry (which was transcribed), the solicitor for Sue Ward advised that Sue Ward was withdrawing from the Enquiry. Thus, Sue Ward and the witnesses called by her did not give evidence. The transcript shows that the solicitor stated that she was acting under instructions from Sue Ward in advising of the withdrawal (Ex 8, Annex D). Sue Ward disputed this and said that the solicitor had given Sue Ward advice to withdraw. Despite that withdrawal, Mark Whybro, as head of the Formal Enquiry, decided to accept and mark as exhibits, evidence (for example, witness statements) on behalf of Sue Ward's case before the Enquiry. (n) Mark Whybro's Report of 19 April, 2010 arising out of the Formal Enquiry (which continued in Sue Ward's absence), made four recommendations that the services of Sue Ward be terminated (Ex 8, Annex. E). The Report was forwarded to John Benson, Acting Commissioner. (o) Sue Ward was written to on 22 and 30 April, 2010. The latter correspondence clarified the former correspondence and set out the four complaints and that they had been proven on the balance of probabilities. She was invited to respond in regards to mitigation of penalty, before any recommendations were put to the Commissioner of the NSW Fire Brigades. Both items of correspondence were signed by Supt. Brierley (Ex 2, Annexures O and P). (p) John Benson reviewed the Report and upheld three of the four recommendations for dismissal (Ex 9, Annex L). His review is contained in correspondence/report of 9 June, 2010 to the Commissioner of the NSW Fire Brigades. (q) The Commissioner of the NSW Fire Brigades, Greg Mullins, wrote to Sue Ward on 11 June, 2010, advising that he was thinking of terminating her services. She was given seven days to provide material that she wished him to take into account in respect of his deliberation (Ex 2, Annex T). (r) The union wrote on 18 June to the Commissioner, on behalf of Sue Ward, seeking a copy of the Formal Enquiry Report, John Benson's Report, the recommendations and a copy of the transcript of the Enquiry's proceedings. The union also sought an extension of time until 1 July, 2010 for Sue Ward to respond (Ex 2, Annex U). The union wrote again to the Commissioner on 1 July, 2010 (Annex. V). The employer, by letter of 15 July extended the deadline for a response to 23 July, 2010 (Annex W). The union filed a threatened unfair dismissal application on 25 August, 2010 (Annex X). That application came on before myself for conciliation. Sue Ward was dismissed by the Commissioner of the NSW Fire Brigades by letter dated 30 September, 2010 (Annex Y). 38Taking into account the outline of the investigation process set out above and the submissions of the parties, the Commission is not persuaded that there has been a denial of natural justice or procedural fairness. 39There is no evidence that the employer had made up its mind that Sue Ward was to be dismissed before the Formal Enquiry had run its course. Sue Ward had been put on notice that she had a case to answer and later was advised that the Commissioner was considering her dismissal as an outcome to the Formal Enquiry. The foregoing is not the same as saying that the employer had already decided to dismiss her before the investigation process had run its course. 40During the second day of the Formal Enquiry, Sue Ward's solicitor addressed the Enquiry and advised that Sue would no longer be participating in the Enquiry. At that stage, Sue Ward and her witnesses had not given evidence. The relevance of not getting into the witness box, is that Sue Ward denied herself the opportunity to make any complaint(s) about denial of procedural fairness and natural justice. Her instructing solicitor gave an address to the Enquiry as to why Sue Ward was not proceeding with her defence and that address went to issues about shortcomings in the employer's evidence and procedures. Sue Ward then gave up a golden opportunity to raise those shortcomings but did not do so. 41In conclusion, the Commission is not persuaded that there has been a denial of natural justice or procedural fairness against Sue Ward, having considered the submissions of the parties. Substantive Unfairness 42The union submitted that the dismissal of Sue Ward was substantively unfair. That is, the four complaints for which she was found guilty and which were said to constitute misconduct, had not been made out by the employer. In the alternate, if the Commission found that there was substance to the employer's case against Sue Ward, then the penalty of dismissal was too severe an outcome. The Four Complaints 43Set out below are the four complaints against Sue Ward (Ex 2, Annex I). For each complaint, the Commissioner of the NSW Fire Brigades signed off as proven - that is, the charge of misconduct was found proven. The Commissioner's letter advising of Sue Ward's dismissal then stated: "I am satisfied that the evidence demonstrates you have habitually challenged reasonable instructions and lawful orders of officers in positions of legitimate authority. This lack of regard for your colleagues and senior officers has had considerable impact on the cohesion, teamwork and importantly, the safety of fellow firefighters. Furthermore, I am satisfied that it has been proven that you have engaged in behaviour that constitutes bullying and harassment. Having taken into careful consideration the material listed in (i) to (v) above, I have formed the opinion that I no longer have the trust or confidence in your ability now, or into the future, to adhere to lawful instructions or to conduct yourself in a manner which is consistent with the Core Values of the NSWFB and the NSWFB Code of Conduct" (Ex 2, Annex Y) 44The employer's written submissions filed on 24 December, 2010 set out its case against Sue Ward in respect of these four complaints. Annexed to those submissions was a document, Annexure A, being a table summary relating to all four charges - with cross referencing to supporting documentation and the parties concerned with each complaint. Complaint 1 45Complaint #1 is as follows: "That Retained Firefighter Susan Ward between 1 March, 2006 and 1 September, 2008, did by words or action, behave in a manner that was subversive of discipline or calculated to bring discredit on the New South Wales Fire Brigade. 47Annexure A cites four incidents falling within Complaint #1 and its timeframe. 48The first incident refers to an intimidatory phone call by Sue Ward to Retained Firefighter Sarah Hoskins - 9 April, 2006. 49The affidavit of Sarah Hoskins states that she was telephoned by Sue Ward who questioned her as to "whether I had marked pay/callout sheets concerning an emergency incident in the Gilgai area. Though the employee who had made the markings was identified, Ms Ward did not retract her accusations or apologise to me concerning this issue" (Ex 3, para 10). 50The employer's final submissions of 24 December, 2010 adds to the above account by stating that Ward questioned Hoskins in an "intimidatory" manner (para. 13). That quoted description does not appear in the affidavit of Sarah Hoskins. (There is a reference to this incident in handwritten notes attached to Hoskins' witness statement. Part of this handwritten recorded incident is not legible - Ex 3, pp20 to 21.) 51The cross-examination of Sue Ward addressed this 9 April, 2006 telephone call. She was asked if it was her practice to "interrogate" people on the phone. Ms Ward responded in the negative. (Tr 06/12/10 - p30, line 14 to 38). 52The Commission finds that this particular incident of 9 April, 2006 can not be relied upon to support its case against Sue Ward. The affidavit of Sarah Hoskins says that she was questioned by Sue Ward. She does not say she was intimidated or interrogated by Sue Ward in respect of this particular incident. The final written submissions of the employer asserts Sue Ward engaged in an "intimidatory" manner towards Hoskins on 9 April but this assertion was not put in cross-examination to Sue Ward that to "interrogate" is the same as to "intimidate". The term "interrogate" was not defined during the cross-examination of Sue Ward. In any event, Sarah Hoskins did not use either of these terms in her affidavit. 53The second incident for complaint #1 refers to a letter from Sue Ward's solicitor to Sarah Hoskins - 16 May, 2006. 54A letter was sent to Sarah Hoskins, dated 16 May, 2006, on behalf of Sue Ward being a letter from Sue Ward's legal representative. The letter has the heading: SUE WARD - DEFAMATION CLAIM. The letter claimed that various incidents had been reported to Sue Ward that Hoskins had been making damaging assertions and accusations relating to Ward in the Inverell community and in their mutual workplace. If those reports were correct, then Hoskins was to immediately cease doing so. Failure to do so, could result in actions for damages in the Supreme Court of New South Wales. The possibility of an Apprehended Violence Order was also raised against Hoskins (Ex 3, Annex A). 55Hoskins lodged a letter of grievance with Station Officer Callow in response to the foregoing. The letter is dated 19 May, 2006 (Ex 3, Annex B). The grievance refers to the above solicitor's letter and denies making any damaging assertions and accusations towards Sue Ward. The letter raises other incidents concerning Sue Ward. 56Callow decided on a process of mediation. He telephoned Sue Ward about that process and he deposed that Sue Ward was disrespectful to him. That telephone conversation is Complaint #3 and will be dealt with later in this Decision. 57Hoskins gave evidence in cross-examination that Sue Ward apologised later for having the solicitor's letter sent to her. The apology arose out of a mediation process begun by Station Officer Callow and apparently completed by an Inspector Dewberry, who is the person to whom Hoskins wrote her resignation letter (Ex 3, Annex E, p17) (Tr 06/12/10 - p61, line 44 to p62, line 9). 58Given from the foregoing that Ward has apologised, during an employer sponsored mediation/interview process, then how can this incident, per se, be relied upon by the employer as evidence against Ward? More relevantly, in terms of this issue being used against her to justify her dismissal, why did she apologise? Complaint #1 is that Sue Ward behaved in a manner subversive of discipline or calculated to bring discredit on the NSWFB. Is that why she apologised? 59The third incident under Complaint #1 is listed as an Argument between RFF Hoskins and Ms Ward - 6 July, 2007. 60Sarah Hoskins' witness statement states that an incident occurred on 6 July, 2007 at Inverell Fire Station between her and Sue Ward. The incident concerned the occurrence book (incident book). Ward allegedly refused to enter Hoskins name in the occurrence book upon being asked to do so by Hoskins. Hoskins entered her own name and advised Captain Winkworth of Ward's refusal and Hoskins response. In front of Capt. Winkworth, Hoskins claimed that Ward became hostile, pointed her finger at Hoskins and called Hoskins a liar. Ward claimed she had not been asked by Hoskins to enter Hoskins' name and further did not know that Hoskins was at the fire station. 61Capt. Winkworth intervened and said that Hoskins' name had to be entered into the occurrence book for insurance coverage against injury. 62Ward allegedly retorted that Hoskins had not reported to her (Ward) and Capt. Winkworth responded that Ward was not in charge of the fire station and that everyone reported to him. 63Hoskins then left the fire station and passed by Ward who allegedly said, "you should learn to tell the truth you little slut". Hoskins protested and Ward denied making that alleged statement. Hoskins re-entered the fire station. She raised this matter (of being allegedly called a "slut") with Capt. Winkworth and stated that out of deep frustration of being pushed too far with constant torment endured she (Hoskins) pointed her finger at her own head and told Ward "she was fucked in the head and that I (Hoskins) was sick of her bullying towards me". (Ex 3, para 5 and Annex C) 64Hoskins lodged another grievance against Ward over the above incident, on 10 July, 2007. In that grievance, she apologised for her derogatory remarks towards Ward but said that tensions had ridden high for a long time between her and Ward. (Ex 3, Annex D) 65Ward's witness statement contains reference to this occurrence book incident. An undated report by her is annexed in which she denies calling Hoskins a slut. The report is headed: Abusive threatening conduct by F/F Hoskins. (Annex Z) 66Captain Winkworth did not give evidence in the proceedings before myself. 67The employer relies upon an email of Captain Winkworth to support its case against Sue Ward as to her behaving in a manner subversive of discipline or calculated to bring discredit on the employer. In the absence of Captain Winkworth, the Commission can not see from a reading of this email that it assists the employer's case. The email records Winkworth saying to Ward, "I stated to Sue (Ward) that I had directed Sarah (Hoskins) to tell you (Ward) to book her in the book and that I was in charge of the station, not her." The Commission rhetorically asks: "What was the demeanour of Captain Winkworth when he made this statement to Sue Ward?" His demeanour is not recorded. He makes no observation in the email about Ward being subversive of discipline. His email is headed: "Heated exchange of words F/F Ward, F/F Hoskins." (Ex 1, Annex R, pp 102-103). It is not headed, "subversive conduct by F/F Ward." 68The Annexure A, Summary Table to the employer's written submissions also cites two documents in support of Complaint #1. 69One document is a letter from Captain Winkworth to a union representative seeking urgent assistance of the union in resolving on going conflict at Inverell Fire Station. (Ex 2, pp 048-049). This document does not assist the employer's case in establishing that Sue Ward is subversive of discipline. 70The other document is on the letterhead of an organisation called, Centre For Corporate Health. It advises that a consultant psychologist spoke with Captain Winkworth as to conflict issues at Inverell Fire Station. The document is undated and unsigned. The document is a hearsay account of Captain Winkworth's reference to incidents at the station (Ex 2, pp 050 to 053). The document is hearsay and does not assist the employer's claim that Sue Ward is subversive of discipline. 71The fourth incident relied upon by the employer for Complaint #1, is the Service Report on Ms Ward by Station Officer Savage - 10 September, 2007 (Ex 1, Annex K, pp 67-68). 72This Service Report is a memorandum from Savage to Supt. M Brown. In his Service Report he makes some comment going to the issue of authority but it lacks specifics. Thus, "F/F Ward has on several occasions been mentioned in regards to questioning the operational decisions of more senior members at the station. This has the detrimental effect of undermining the confidence of those members who are required to take charge at an incident." 73Station Officer Savage did not give evidence in the proceedings before myself. The employer has not shown how the foregoing memorandum constitutes evidence of Ward being subversive of discipline. 74The fifth incident relied upon by the employer is a letter from RFF Trevithick (Ex 2, pp 086-088). 75This letter is addressed, "To whom it may concern". It is undated and unsigned. RFF Trevithick did not give evidence in the proceedings before myself. 76The subject matter of the letter is Sue Ward and her negative impact on personnel at Inverell Fire Station and, in particular, two incidents are recorded. 77The letter refers firstly, to an incident between Sue Ward and another firefighter called Baxter. The thrust of Trevithick's recording of this incident is that Ward had no right to address firefighter Baxter on the issue of the occurrence book and especially not in front of the other firefighters from Inverell Fire Station. He added, "Miss Ward acts as if she is the SO (Station Officer) and if any one does anything at all wrong or something she does not agree with, she is there biting at your heels". This incident arose out of the occurrence book and Baxter's entry/non-entry in this book and the arrangement he had made previously with the Station Officer about that entry/non-entry. Trevithick refers to the second incident, which was between her and himself and describes her as having a discourteous character as she "ordered" him what to do. Ward's affidavit concurs that she ordered Trevithick to watch her fill in the occurrence book but refutes it was inappropriate. She then gives an explanation in her defence (Ex 2, para 68). As Trevithick did not give evidence before myself, the Commission can not ascertain what to make of this "ordered" what to do allegation and as measured against her defence. 78The sixth incident relied upon by the employer is the Resignation of RFF Hoskins (Ex 3, Annex E, pg 17). 79This resignation letter is dated 30 May, 2009. Her letter says that her recent absence from work is due to the bullying and harassment by Ward against her. She states that there has been a lack of support and leadership from a certain named Station Officer as to that bullying and harassment. She advises of her resignation because the employer cannot protect her from the harassment. The resignation letter, per se, does not raise any details of incidents involving Sue Ward. 80The Commission notes that it is this resignation letter that began the chain of events that led to the dismissal of Sue Ward. Summary 81Complaint #1 raises several matters against Sue Ward as being evidence of Sue Ward's behaviour that constitutes subversive of discipline or calculated to bring discredit on the New South Wales Fire Brigade ("the NSWFB"). 82Having considered the matters raised by the employer, the Commission finds that the employer has not satisfied the standard of proof on it that Sue Ward engaged in such conduct, for the period of time under question - 1 March, 2006 to 1 September, 2008. The first incident of 9 April, 2006 (against Sue Ward), was one in which Hoskins' evidence does not disclose that she identified this incident as one in which Ward behaved in an "intimidatory" manner. In the employer's second incident, Ward apologised but it is not known why she apologised. The third incident of 6 July, 2006 goes to an alleged subversive of discipline to Ward's superior Winkworth but he did not give evidence in the proceedings before myself. (This incident, as to the use of the term "slut", is dealt with under complaint #4). The fourth incident of 10 September, 2007 involves Station Officer Savage raising a negative assessment of Ward but lacked specifics and he did not give evidence in the proceedings before myself. The fifth incident are two reports by firefighter Trevithick against Sue Ward but he did not give evidence in the proceedings before myself in order to deal with Ward's defence. 83For the reasoning set out above, the Commission finds that the employer has not made out its case of misconduct against Sue Ward for complaint #1. Complaint 2 84Annexure A, Summary Table, puts Complaint #2 as follows: "Retained Fire fighter Sue Ward between 1 September 2008 and 6 July 2009, did by words or actions behave in a manner that was subversive of discipline or calculated to bring discredit on the New South Wales Fire Brigades." 85There are three incidents/issues listed in support of this complaint. 86The first incident/issue is a letter from Captain Bob Winkworth to Commissioner Mullins - 15 June 2009 (Ex2, pg 056). As previously stated, Winkworth did not give evidence before myself. 87This letter was written two weeks after the resignation letter of Hoskins, although no reference in the letter is made to her resignation. 88The subject matter of the letter is Sue Ward and the heading of the letter is "Ongoing conflict matters pertaining to Station 331 - Inverell." No specifics are raised in the letter as to Sue Ward being subversive of discipline but she is cast in a negative way. 89Attached to this letter is certain documentation which is cited this way in the letter, "I am enclosing documentation for your attention on matters that have been a concern on the efficient and effective coordination of systems within the Inverell Fire Station. These matters were first brought to the attention of NSW Fire Brigades as far back as 2000." That documentation is a copy of handwritten notes. It begins, "Interview with Bob Winkworth in the presence of John Watts, solicitor commenced 1625 hours on 21.7.09." This extract refers to Sue Ward and casts her in a negative way but lacks specifics. 90The second incident/issue is a letter from RFF Taylor to Commissioner Mullins - 2 July 2009 (Ex2, pg 069 to 072). 91This letter is dated 2 July 2009 and written about one month after the resignation letter of Sarah Hoskins. Taylor, the author of the letter, was located at Inverell Fire Station. 92The letter casts Sue Ward in a negative way. He cites at length one incident only involving Sue Ward from the previous year (2008). Taylor arrived at the fire station to respond to a call out for a fire. Other fire fighters (including Sue Ward) were preparing to drive a fire truck to the fire. Taylor got into his fire gear. He came up to the fire truck and as he reached for the handle, the fire truck (with Ward and a Robbie Wighton on board) drove off. This incident was witnessed by a John Baxter, another fire fighter. Taylor and Baxter responded to the fire by driving out to it in Taylor's private car. After the fire and back at the fire station, heated words were said. 93This incident, per se, can not be relied upon by the employer as evidence against Sue Ward. The driving off of the fire truck, as Taylor reached for the handle, may have been deliberate and, as such, at least discourteous and at the other end, may have been dangerous or unprofessional. But who was driving the fire truck? Taylor does not say. If it was not Ward, then how is she to be held to blame for the deliberate driving off (if that was the case) and its possible consequences. 94RFF Taylor was not called as a witness in the proceedings before myself. 95A third incident/issue is the Overview of Inverell Fire Station by Station Officer Callow (Ex2, p 091). 96This Overview is a memorandum. It is undated. The addressee is not given. The bottom right hand corner of this document/memorandum says "Page 2 of 5". The other pages that make up this memorandum are missing. 97The memorandum reports on the problems that Callow has encountered at Inverell Fire Station. The problems follow a pattern "that could be related to one retained fire fighter... Sue Ward.: He describes her character in a negative way. He refers to the telephone conversation between him and her which is dealt with under Complaint #3. Summary 98The Commission finds that complaint #2 has not been made out by the employer. The employer did not provide evidence demonstrating that Sue Ward engaged in conduct subversive of discipline or calculated to bring disrespect to the NSWFB. 99As to the first incident of 15 June, 2009 relied upon by the employer, no specifics were given by Captain Winkworth against Sue Ward and he did not appear as a witness before myself. The second incident of 2 July, 2009 could not be shown to be due to the action of Sue Ward and Taylor was not called to give evidence before myself. The third incident is an incomplete memorandum and the one incident that the author of this document (Callow) deals with is an incident specifically referred to by the employer as forming the complaint against Sue Ward per complaint #3. 100Accordingly, the Commission finds that the employer has not produced evidence to support its claim of misconduct against Sue Ward. Complaint 3 101Annexure A, Summary Table, puts Complaint #3 as follows: "Retained Fire fighter Sue Ward on 22 May 2006, at Inverell, was disrespectful or insolent to a person in authority over her, to wit, Station Officer Robert Callow." 102This 22 May 2006 incident/issue refers to a telephone conversation between Callow and Ward. The phone conversation arose from Sarah Hoskins lodging a grievance with Callow in response to receiving a letter from Sue Ward's firm of solicitors and which letter was headed: SUE WARD - DEFAMATION CLAIM. The letter referred to reports that Hoskins had been making damaging assertions and accusations relating to Ward and, if true, to desist from doing so any further. The letter also raised the possible option of an Apprehended Violence Order being taken out against Hoskins. 103Callow decided on a process of mediation upon receipt of the grievance lodged by Hoskins against Ward. He telephoned Sue Ward about holding an interview and whether she needed a support person. Station Officer Callow deposed that Sue Ward said during this telephone conversation, "...you (Callow) are trying to fucking shaft me you cunt..." Callow reminded Ward that she was talking in that manner to the Station Officer and objected to her manner. He deposed, "she then screamed again that she didn't give a fuck who she was talking to and that we were all out to get her." (Ex4, para 11). 104His file note of this conversation is Annex C to his witness statement. It is a handwritten note and undated. The note contains none of the language, "fucking" and "cunt". The note does say that Sue Ward "claimed that she was being shafted by me (Callow)." Station Officer Callow was cross-examined on the absence of these two quoted words from his note but was not challenged that these words had not been used by Ms Ward and was not challenged as to the accuracy of his notes going to his negative portrayal of Ward as to her demeanor to Callow (she was screaming) and his authority (Tr 14/12/10 - p6 to 10). 105The affidavit of Sarah Hoskins refers to this incident. She was interviewed by Inspector Boath on 5 August 2009 as part of the Preliminary Enquiry being undertaken by him into workplace issues raised by various employees against Sue Ward. Attached to her affidavit are handwritten notes (in parts difficult to read) of this interview (Ex 3, Annex F). Hoskins was standing with some person (not named) when she heard Ward abuse Station Officer Callow over the phone. The notes make it clear that Hoskins was standing in the presence of Callow and not Ward. Hoskins says, "All I could hear was her screaming at him... She reduced him to tears. A.M. (the unknown person) and I were both shocked and we suggested to R.C. that he record the events". 106Ms Hoskins gave evidence in examination-in-chief on this issue confirming the above. She said that when Callow got off the phone, he said: "I have never ever been spoken to so rudely as I have just been spoken to now by Ms Ward". She added that Station Officer Callow was extremely upset by the incident (Tr 06/12/10 - p47, line 47 to p48, line 14). 107Ms Hoskins was not cross-examined on her oral or affidavit evidence about this incident. 108Sue Ward's witness statement sets out her denial of swearing at Callow. She also deposed that she did not use bad language at any time, to any one (Ex 2, para 86). 109Under cross-examination, it was put to Sue Ward that she had used objectionable language to both Station Officer Callow ("fucking" and "cunt") and to R.F.F. Sarah Hoskins ("slut" and "cunt"). Ms Ward denied these allegations about her using objectionable language (Tr 06/12/10 - p20, line 38 to p25, line 1). (To the best of the Commission's knowledge, Hoskins said that Ward called her a "slut" only and not a "cunt"). Summary 110Complaint #3 is that Sue Ward was disrespectful or insolent to Station Officer Callow who had authority over her. Having considered the evidence, the Commission finds on the balance of probabilities, that Sue Ward engaged in disrespectful conduct towards Callow. 111Sue Ward denied swearing at Callow, who said she did. Sue Ward deposed she did not use bad language at any time, to anyone. In that regard, there are two witnesses who disagree with her - Callow and Hoskins. Station Officer Callow's evidence is that Sue Ward called him a "cunt". Hoskins' evidence is that Ward called her a "slut". The context of the Hoskins-Ward incident, as reported by Hoskins, shows that she objected to being called by this term (Ward denied doing so), confronted Ward there and then, raised the issue with Captain Winkworth there and then, and lodged a grievance over this issue. The strong reaction by Hoskins there and then to being called a "slut" showed that she took a strong objection to that type of description and therefore that context shows that the term "slut" is to be categorised as objectionable, bad language. 112Therefore, the Commission rejects, on the balance of probabilities, Sue Ward's evidence that she does not, at any time, use bad language. 113Now complaint #3 is not a complaint about objectionable, bad language per se. But given Sue Ward's denial that she uses bad language, and the Commission's finding that she did, then the Commission prefers the evidence of Callow as to his evidence as to the phone conversation between him and Ward. Thus, the Commission accepts that Sue Ward called him a "cunt", screamed at him and did so in a way that was disrespectful to his authority. Callow himself said to Ward, and the Commission accepts that he did, that she was talking in that manner (screaming and language) to the Station Officer (a person of authority) and he objected to that manner. The evidence of Hoskins, although not necessary to make the foregoing finding of preferring Callow's evidence, nevertheless supports his account in that Hoskins said she heard Ward screaming over the phone and that Callow was adversely effected by Ward's manner. 114In assessing whether the foregoing account of the phone conversation constitutes a ground for dismissal, the Commission must have regard to the context. The conduct (by Sue Ward) must be assessed according to the standards of men and not angels: Jupiter General Insurance Company Limited v Shroff (1937) 3 AII ER 67 at pp73 to 74. 115The Commission takes the view that the context showed that Sue Ward was not engaging in playful banter but was disrespectful to the authority of her Station Officer in no uncertain terms. 116For the above reasoning, the Commission finds that the employer has satisfied the standard of proof to show that complaint #3 has been made out against Sue Ward. Complaint 4 117Complaint #4 contained in Annexure A, states, "Retained Firefighter Ward on 11 March, 2008, did disobey or disregard a lawful order made or given by Captain Bob Winkworth, a person having the authority to make or give the order". 118The employer relies upon an email of Winkworth for the details of this incident of 11 March, 2008 for supporting this particular complaint (Ex 1, Annex 0, pp94-95). 119Winkworth's email goes to a drill/fire - that is, there was a drill exercise to take place and during the same, a fire call was received. Ward was partially dressed in fire gear whilst other fire fighters were fully uniformed. Winkworth asked Ward to put the rest of her gear on. Ward responded, "No, Sara (Hoskins) is on the tanker". Winkworth again asked Ward to get fully dressed in her uniform and to join the rest of the crew. Ward responded, "No, I can't go, I will have to stay to drive the pumper, there isn't a driver left at the station". Ward then, reportedly, turned away from Winkworth and approached the Station Officer who said he did not require everyone to go to the fire. 120Winkworth then records, "FF Ward, in my opinion, gave me a defiant look". Winkworth spoke to Station Officer Savage who then told Ward to get fully dressed and come to the fire. 121After the call-out, Station Officer Savage advised Winkworth that Savage and Ward had come to an arrangement whereby Ward would not have to go on an appliance if Sarah Hoskins was on it. 122Complaint #4 is that Ward disobeyed or disregarded a lawful order made or given by Captain Winkworth, a person having the authority to make or give the order. 123Having considered the context of Winkworth's email, the Commission holds that complaint #4 does not constitute a ground of misconduct by Sue Ward. Winkworth was unaware of the Station Officer Savage-Ward arrangement but it was an arrangement sanctioned by the Station Officer at Inverell Fire Station. It can not then be said unequivocally that Ward was disobeying or disregarding an order, given the foregoing sanctioned arrangement. 124Captain Winkworth did not give evidence in the proceedings before myself. 125Arising out of the two day Formal Enquiry, Assistant Commissioner Whybro (who conducted that Enquiry) issued his report and found that all four complaints had been made out and recommended the dismissal of RFF Ward. That report was given to John Benson, Deputy Commissioner. He wrote his own report to the Commissioner of the NSWFB expressing his own views and recommendations. He expressed the view that he was not satisfied on the evidence that complaint #4 had been proven. He recommended that this particular complaint against RFF Ward be withdrawn. 126The Commissioner of the NSWFB did not uphold that recommendation of John Benson but held the complaint constituted misconduct. The Commissioner of the NSWFB did not appear as a witness in order to explain the reason(s) for not upholding the recommendation of Deputy Commissioner Benson as to complaint #4. Summary 127The Commission finds, given the above reasoning, that the employer has not made out its case against Sue Ward with respect to complaint #4. CONCLUSION 128The Commission has before it, an unfair dismissal application. The union, on behalf of its member Sue Ward, claimed that Sue Ward had been unfairly dismissed. The union relied upon two broad grounds for claiming unfair dismissal - (a) denial of procedural fairness and (b) the substantive case by the employer against Sue Ward had not been made out. 129As to the denial of procedural fairness, the Commission has held that there was no denial of procedural fairness. 130As to the substantive case against Sue Ward, the employer relied upon four complaints against Sue Ward and which the employer said constituted misconduct by Sue Ward for each complaint. The Commission held that the dismissal of Sue Ward was a summary dismissal and that the employer carried the onus to prove that Sue Ward had engaged in such misconduct. The standard of proof required upon the employer to establish that Ward had engaged in such misconduct was the Briginshaw standard. 131As to complaints one, two and four, the Commission found that the employer had not made out its case that Sue Ward had engaged in misconduct in the context of each of those complaints. 132As to complaint three, the Commission found that the employer had made out its case that Sue Ward had engaged in misconduct in her phone conversation with her supervisor, Station Officer Callow. 133Given the finding that one of the complaints against Sue Ward has been made out by the employer, then the Commission finds that the union has not been able to show that her dismissal was unfair (harsh, unjust or unreasonable). 134The Commission formally dismisses the unfair dismissal application. A Macdonald 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. Decision last updated: 28 April 2011