A v Fire and Rescue NSW [2018] NSWIRComm 1039

Industrial Relations Commission New South Wales Medium Neutral Citation: A v Fire and Rescue NSW [2018] NSWIRComm 1039 Hearing dates: 26 and 27 April 2017 Date of orders: 31 May 2018 Decision date: 31 May 2018 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: Public sector disciplinary appeal allowed - reprimand and fine imposed in lieu of demotion Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL - hearing de novo – disciplinary action - misconduct – demotion from rank of Station Officer to Senior Firefighter for a period of 12 months - Commission not to confine itself to misconduct alleged – appeal does not turn on whether misconduct as alleged occurred - no requirement on the Commission to make a finding that misconduct occurred – jurisdiction protective of public service and public - Commission to determine whether the disciplinary penalty imposed was correct in all the circumstances or whether an alternative sanction should be substituted – obligation on employees when on duty to comply with policies and not cause reputational damage – Decision of Commissioner quashed –alternate remedy of reprimand and fine imposed Legislation Cited: Industrial Relations Act 1996

Fire Brigades Regulation 2014 Cases Cited: Bankstown City Council v Paris [1999] NSWIRComm 368; (1999) 100 IR 363 Bindley v Secretary, Industrial Relations for Corrective Services NSW [2017] NSWIRComm 1026 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Director of Public Employment by his agent the Director-General of The Department of Juvenile Justice and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 Duhbihur v Transport Appeal Board [2005] NSWSC 811 Goodwin v Secretary of the Ministry of Health (in respect of the Ambulance Service of New South Wales) [2016] NSWIRComm 1044 Grech v State Transit Authority [2014] NSW IRComm 1030 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 Starr v Department of Human Services [2016] FWC 1460 von Senff v State Transit Authority [2013] NSWIRComm 1013 Category: Principal judgment Parties: Mr A (Applicant) Fire and Rescue NSW (Respondent) Representation: Counsel: Mr R Reitano of counsel (respondent) Mr R de Meyrick of counsel (appellant)