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) Solicitors: Brazel Moore (applicant) File Number(s): 2016/201654 Decision 1. This is a public sector disciplinary appeal brought pursuant to Part 7 of the Industrial Relations Act 1996 (the Act). 2. The respondent is Fire & Rescue NSW (FRNSW). The appellant has been employed by the respondent for approximately 20 years, including 10 as Station Officer. 3. Pursuant to s 164A of the Act, I have assigned pseudonyms to the appellant, all witnesses who appeared in the proceedings and other persons named in the course of proceedings. Mr A is the appellant and Mr B is the appellant's brother. 4. FRNSW has taken disciplinary action in respect of Mr A by demoting him from the rank of Station Officer to Senior Firefighter for a period of 12 months. At the end of that period, the respondent proposes to reinstate Mr A to the rank of Station Officer subject to the maintenance of appropriate standards of behaviour during the period of demotion. This position will be Zone WW. 5. The intended disciplinary action was stayed by FRNSW pending the outcome of these proceedings. 6. The salary reduction arising from proposed demotion is approximately $16,000 gross per annum. 7. The disciplinary decision was made by the Commissioner, FRNSW pursuant to Clause 35(2) of the Fire Brigade Regulation 2014 (the Regulation) on the basis of misconduct in breach of FRNSW "legislation and policies". 8. Mr A submits the appeal should be allowed on the grounds that the alleged conversation with police on 1 January 2015, as described in some detail below, simply did not occur. 9. Mr A was represented by Mr de Meyrick of Counsel who called Mr A to give evidence on his own behalf. The applicant's brother, Mr B also filed a statement. He is a member of NSW Police and was not required for cross-examination. 10. The respondent, FRNSW was represented by Mr R Reitano of Counsel. The following witnesses were called to give evidence for FRNSW: 1. Mr C is a Senior Firefighter; 2. Mr D is a Senior Firefighter; 3. Mr E is a Firefighter; 4. Mr F is an investigator with a specialist investigation company; 5. Mr G is a Local Area Commander, NSW Police; 6. Mr H is a Senior Constable, NSW Police; 7. Mr I is a Constable, NSW Police; 8. Mr J is Manager, Conduct and Performance, Fire & Rescue; 9. Mr K is an Inspector, NSW Police; 10. Mr L is an Employee Relations Officer; FRNSW and 11. Mr M is a Professional Standards Inspector, NSW Police. Pseudonyms have been assigned in transcript order. 1. In determining this matter, I have given consideration to the evidence relied upon by the parties. The fact that I do not refer exhaustively to that evidence (or elements of evidence that were addressed in submissions helpfully advanced by counsel) does not mean that I have not read those materials. The reverse is the case. Shortly stated, I have sought to encapsulate below the essence of the parties' evidence in determining this application. 2. There is much history to this matter. In correspondence dated 23 October 2015, Mr J wrote to Mr A to advise that the allegations of misconduct would be investigated by an external investigator, Mr F. Mr J subsequently informed Mr A that his alleged conduct was in breach of the Code of Conduct and the Fraud and Corruption Prevention Policy: I refer you to the contents of the FRNSW Code of Conduct, as referred to in Commissioner's Order 2009/14 which states: Respect for People NSWFB employees and contractors must all times treat members of the public, colleagues and other people they deal with at work with respect, courtesy, honesty and fairness, and have proper regard for their interests, rights, safety, health and welfare. The Fraud and Corruption Policy provides: What is Fraud and Corruption? Fraud is… dishonest activity causing loss to the public or other third parties with this is associated with or connected to the NSWFB Corruption is… conduct of any person… that adversely affects the honest performance of a NSWFB employee's functions or of the NSWFB functions the performance of a NSWFB employee's functions dishonestly or with partiality conduct of a NSWFB employee… that amounts to a breach of public trust I also refer you to clauses 15 and 17 of the Regulation which states in part: 15 Honesty and truthfulness (1) A firefighter must act honestly and truthfully in the performance of the firefighter's functions. (2) In particular, a firefighter must not in the capacity of a firefighter: (a) wilfully or negligently make a false or misleading statement to a person, or (b) knowingly make a false or misleading statement in any official record, or (c) without good or sufficient cause, destroy or mutilate any official record or alter or erase any entry in it, or (d) fail to account promptly for any money or property that comes into the firefighter's possession during the course of the firefighter's functions, or (e) otherwise be concerned, whether directly or indirectly, in corrupt conduct. 17 Unacceptable behaviour (1) A firefighter must not: … (g) while on or off duty, by words or action, behave in a manner that is subversive of discipline or calculated to bring discredit on Fire and Rescue NSW… 1. The Commissioner for FRNSW first wrote to Mr A on 11 December 2015 to inform him that it proposed to investigate allegations that he had engaged in misconduct in breach of the Regulation and/or the Code of Conduct. The allegations were set out as follows: 1. At or about 11 pm on 1 January 2015 at the Fire Station, you wilfully or negligently made a number of false or misleading and/or derogatory statements to 2 police officers, Mr H and Mr I. These statements included: a. In relation to Mr G, it is alleged that you stated: Mr G has been going to Police Stations away from (his) Local Area Command to delete events from COPS; Mr G has a special login to see the NSW Police Web Cops system that gives him the ability to alter and delete COPS events; Mr G is going to be arrested and charged with a number of matters that include intimidation and harassment against you; and You believe that due to his rank in the NSW Police Force, Mr G is able to get away with what he wants. b. In relation to another NSW police officer, Mr K, it is alleged that you stated: Mr K is the "ringleader" at Boolaroo; Mr K is using his time in the NSW Police Force to influence Mr G in his decisions relating to your brother, Mr B, who is a member of the NSW Police Force; Mr K is unfairly targeting your brother, Mr B, due to ongoing issues; You believe Mr K is having a sexual relationship with your ex-partner; and Mr K is going to be arrested for numerous offences. c. In relation to another NSW police officer, a Sergeant, it is alleged that you stated: He followed your brother, Mr B, home so he could intimidate (him); He has threatened your mother with physical violence on numerous occasions when at home; and He was also implicated in harassment and intimidation charges and was going be arrested and charged. d. In relation to another NSW police officer, a Leading Senior Constable, it is alleged that you stated: He fabricated evidence in a previous domestic violence incident involving you and your ex-wife; He was ordered by Mr K to have the evidence disappear so that your ex-wife would not be charged with offences relating to assault; The Leading Senior Constable threatened you on a number of occasions when dealing with you during the domestic incident; and The Leading Senior Constable was also to be arrested and charged with numerous offences. The investigation concluded, on the balance of probabilities, that the alleged conduct was sustained. I have carefully considered the investigation report and formed the opinion that the sustained conduct constitutes misconduct. Clause 35 of the Regulation provides: 35 Dealing with allegations of misconduct (1) If the Commissioner is made aware of an allegation that a firefighter may have engaged in any misconduct, the Commissioner may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the firefighter. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Commissioner may, if the Commissioner is of the opinion that the firefighter has engaged in any misconduct, decide to take disciplinary action with respect to the firefighter. (3) Before any disciplinary action is taken with respect to a firefighter under this clause, the firefighter must be given an opportunity to make a submission in relation to the disciplinary action that the Commissioner is considering taking. (4) Even though the Commissioner decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Commissioner may, at any stage of the process: (a) decide to take remedial action with respect to the firefighter concerned, or (b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both. (5) A decision under this clause by the Commissioner to take remedial action with respect to a firefighter does not, if it appears to the Commissioner that the firefighter may have engaged in any misconduct while the remedial action is being taken, prevent the Commissioner from dealing with the alleged misconduct as a disciplinary matter under this clause. (6) If a firefighter fails to do anything that is required of the firefighter by the remedial action taken in accordance with a decision under subclause (1) (b) or (4) (a), the Commissioner may decide to deal with the allegation against the firefighter as a disciplinary matter in accordance with the procedural guidelines. Pursuant to clause 35 (2) of the Regulation, I am now is considering taking disciplinary action which includes: caution or reprimand fine reduction of salary or demotion direct/allowed to resign termination of employment The most serious disciplinary action I am considering in relation to this matter is demotion to a lower position for a set period of time. However, before making my final decision I will consider: all the relevant facts and circumstances concerning your conduct detailed within the attached investigation report, including the response to the allegations provided by you any further submission you may wish to make in relation to this disciplinary action under consideration your employment history with FRNSW 1. Mr A was subsequently provided the opportunity to make a written "show cause" submission in response to the above determination and submit any additional information which he sought to be taken into account before any final decision was made. 2. In correspondence dated 3 June 2016, the Commissioner wrote to Mr A to advise him that his response to correspondence dated 11 December 2015 had been considered and investigation had now concluded: I am now required to make a decision regarding this matter and I have carefully considered: all of the relevant facts and circumstances concerning your conduct your submission which the Fire Brigade Employees Union provided me your behalf on 28 January 2016 the medical report by Professor Nicholas Grozier dated 31 March 2016 your emails dated 18 and 21 December 2015 and 4 February 2016 your employment history with FRNSW In making my final decision I have also given consideration to the medical examination conducted by Professor Nicholas Grozier. I am satisfied there are no identified health issues which may have contributed to your behaviour on 1 January 2015. I have carefully considered your response and note that you have not shown any substantial insight or accountability for your actions. In making this finding I have also had regard to your employment history and your position and standing in the organisation as a Station Officer for approximately 11 years. Pursuant to Clause 35 (2) of Fire Brigades Regulation 2014, I have decided to take this action. I have determined you will be demoted from the rank of Station Officer to the rank of Senior Firefighter from period of 12 months… At the conclusion of the 12 months you will be reinstated the rank of Station Officer subject to the maintenance of appropriate standards of behaviour during the period of demotion. You will be found position in Zone WW during and after the demotion. As a Station Officer, the manner in which you conduct yourself by your words and actions are a reflection of your professionalism, integrity and the position of leadership you hold. It is of paramount importance that you set an example for other Firefighters, by ensuring you uphold professional and ethical standards and core values of FRNSW at all times, and that you demonstrate this in your dealings with other organisations and the public. 1. Mr A was first represented by his Union, the Fire Brigade Employees Union. On the materials before the Commission, it appears the Union vigourously sought to defend the interests of Mr A. Prior to engaging Brazel Moore solicitors, Mr A was represented by another law firm. Evidence Case for the respondent Mr C 1. Mr C is a Senior Firefighter and had known Mr A for some time. He had worked under his direction for some three years. His evidence comprised a record of interview. 2. Mr C did not hear any conversation between Mr A and police on the night of 1 January 2015 and was also unaware what he is alleged to have said to them. Mr C made the following observations concerning Mr A: …he's going through a custody battle with his ex-wife, which is sort of, taking up a fair bit of time. He is obviously under a bit of stress with that, but, as this has been going on for quite a while, so you sort of – you know. You pay attention to what is says sometimes, and other times he just starts to, sort of, repeat himself because he's told to the same sort of thing before. So, yeah. Is he is a little bit stress with that. 1. In relation to a question concerning police intervention, Mr C stated: He's said his wife's made false allegations against him over different things. But, that's about it. … Well, obviously he hasn't been a happy when he's felt he's been on the wrong side of it. But, generally at jobs and that, because we've still got to associate with them at jobs, which is usually. They are quite friendly. He doesn't seem to antagonise them from what I can see. So, I don't know whether there's specific ones that he's not happy with. 1. In relation to a specific question whether Mr A had mentioned "about police officers having affairs with his former wife", Mr C stated: He has. I don't know the bloke's name. But he said some Inspector up here was having an affair with his wife, and – well I don't know who is talking about … 1. Mr A had not spoken to him about the allegation concerning police deleting information off the COPS database. 2. In cross-examination, Mr C confirmed his view that Mr A was under stress at the time of the alleged incident "because he was going through divorce". Mr A had not shown disrespect for Mr C. Nor was he, in his view, not a professional fire officer. Mr D 1. Mr D was a Senior Firefighter and had worked under the supervision of Mr A for three years. His evidence comprised a record of interview. 2. Mr D recalled that he had opened the door when the police arrived at the Fire Station to talk to Mr A. He subsequently went upstairs to watch the television. He did not hear the conversation between Mr A and the police. He first became aware of the alleged complaint against Mr A at the time of the interview. 3. In relation to a question concerning the police and Mr A, Mr D stated: He's talked about issues that he's had with his separation. His partner, ex-partner, being involved with a police officer … I'm not sure how he knows. I don't know. She's told him. Or, he's seen … (him) … 1. It was Mr D's evidence that Mr A had not mentioned "police" in anger or had shown any malice towards them whilst at work. 2. In relation to a specific question concerning police corruption, Mr D stated: He's mentioned kind of things, but it gets to a point where you kind of don't pay too much attention to him when he starts to tell a story …you (hear) a lot of stories … (at) fire stations that people tell. You can always exaggerate (a) story… (so you) switch off or you just go ""righto". 1. Mr D was unaware of any friction between the police and his Fire Brigade crew when on site at various jobs. He considered that Mr A's conduct on the job had been professional. 2. In cross-examination, Mr D recalled that on the night of 1 January 2015, a woman who lived across the road from the Fire Station had sought refuge in the Fire Station after an alleged domestic violence incident with her partner. 3. Mr D did not consider Mr A had behaved inappropriately as Station Officer nor had he acted in a disrespectful manner in that capacity. Mr D considered "He was always professional at work". Mr E 1. Mr E transferred to the Fire Station in 2014. His evidence comprised a record of interview. 2. Mr E recalled that on the night of 1 January 2015, a woman had had sought refuge sometime between 8.30 pm and 9.00 pm. Mr A subsequently spoke to her and the police were advised that "there'd been a domestic". When the police arrived a few hours later, he stayed upstairs at the Fire Station and recalled Mr A went down to see them by himself. 3. Mr E did not hear any conversation between the police and Mr A. A few weeks later, Mr E recalled that Mr A: mentioned that the police had raised this complaint against him, with workplace standards, in passing. And, I said "what for?" And, he said, "Apparently I abused them, or said something inappropriate to them". But, that was the end of it. …. he gave the impression that he thought it was some vindictive complaint then made by the police, possibly dealing with all the other crap that's going on at the same time. But, you know. A lot of that stuff, once he starts talking about it, we just go, "I don't want to get involved". …It's common knowledge that Mr A's got a pretty effective outside life from here, and it's pretty crazy and all involved. … When he talks about the issues he has. He might mention the custody issue he has with the children, and the wife, and that kind of thing. And, he mentioned that his brother had trouble with the police and that stuff as well, and maybe the complaint with Workplace Standards, might be a bit of "tit for tat" with other issues with the police. But we don't but, we don't get involved in any of that. 1. In relation to a question concerning the police involvement with Mr A, Mr E stated: … he mentions them in passing when he is talking about his stories. "My brother's having some trouble with the police", or "I had a run in with the police the other night", or whatever. But he doesn't really say much else about them. He doesn't paint them glowingly. He doesn't paint the awful. 1. Mr D stated that Mr A had mentioned that his wife was involved with a local Inspector, "But, that's as far as I know". Mr A had also talked about police being corrupt but again Mr D stated that he didn't want to get involved in these conversations. 2. In cross-examination, Mr E stated that while he was aware Mr A had some problems or issues in his private life concerning the custody of his children, his ex-wife and policeman brother, he did not consider these matters affected his performance as a Station Officer. Moreover, Mr E stated that he could not recall Mr A acting or behaving in an unprofessional manner, being rude or disrespectful to other persons. Mr F 1. Mr F is the investigator retained by FRNSW to investigate the allegations against Mr A. Various records of interview concerning the investigation were attached to his affidavit. I have read Mr F's investigation report a number of times. The numerous allegations made by Mr A against senior members of NSW Police are serious and controversial. They were investigated. However, I do not propose to replicate those parts of the investigation report here. The allegations put against Mr A fairly reflect those matters. I also note the Police Integrity Commission had informed Mr F that any findings were not able to be made public. 2. Mr A declined the invitation to be interviewed by Mr F. Accordingly, Mr F was unable to apprise Mr A of all the material that he had gathered during the course of his investigation and determination of the allegations. 3. It was Mr F's evidence that "Mr A had made it very clear to an Inspector that it didn't intend to be interviewed. If I had pursued it any further, I would have been harassing him, or whatever; that could have been an inference out of it". 4. Mr F stated that he was aware Mr A had broadly responded to the allegations in a single page statement provided to FRNSW through the Union in the following terms: * At approximately 18:15 hours on 1 January 2015, he witnessed a woman being assaulted by a man near the fire station. Shortly thereafter, he reported the assault to the police; * Mr A categorically denied that he had made any of the specific statements alleged against him; * Mr A believed this matter was a vexatious complaint. His former partner was now involved with a member of the NSW police force and their breakup was acrimonious; * It was Mr A's opinion that the complaint had been motivated and pursued in unethical manner by senior members of the police force so as to tarnish his reputation; and * The matter follows a Police Integrity Commission complaint lodged by Mr A in November 2014 concerning the behaviour of a member of the NSW police force. 1. It was Mr F's evidence that he did not interview Mr M because "it was not the subject of my investigation. My investigation was the conduct allegations, of Mr A's conduct". However, Mr F stated that he had made "enquiries other than speaking to Mr M". In that regard, Mr G had said the allegations put against Mr A had been investigated. Mr F also confirmed the Police Integrity Commission was unable to assist his investigation. 2. Mr F also confirmed that his role as investigator was not to go through every allegation line by line, but rather to determine whether Mr A's conduct over the whole conversation with the police was inappropriate. 3. With reference to the Regulation, Mr F stated that he considered Mr A had breached clause 15(2) (b) of the Fraud and Corruption Prevention Policy on the grounds that he had wilfully or negligently made a false or misleading statement. 4. Mr F agreed that Mr G had told him "there were prior complaints made by Mr A and Mr B regarding similar issues". In that regard, he had been told that Mr B "was a challenging officer who had a number of performance, integrity and certain conduct issues". Mr B was also subject to certain criminal complaints yet to be determined. The following exchange subsequently ensued: Q. Can I suggest to you that you were left with the impression after interviewing Officers Mr G and that the kind of complaints that Mr A is alleged to have ventilated with Mr H on 1 January 15 were things that he'd raised before? A. Yes. Q. And things that had been rejected; is that fair? A. In a general sense. I don't know that everything had been rejected but in a general sense, yes. Q. There was no substance in any of them? A. No. Q. He was a serial, vexatious complainer? A. I didn't form that view, but that comment was made. Q. But that was what was said to you? A. Yes. Q. That the Police Integrity Commission weren't interested in them or hadn't seen fit to deal with them? A. My interpretation of Mr M's evidence was that he didn't believe that because he hadn't ‑ that PIC weren't pursuing the matters because he hadn't been informed that anything had been dealt with by PIC. Q. None of these matters which I've just listed were ever explained to Mr B, were they? A. Not by myself, no. 1. Mr F considered Mr A had also breached clause 17(1)(g) of the Fraud and Corruption Prevention Policy by behaving in a manner that a reasonable person would consider could bring discredit upon the FRNSW. He was accused of importing the "reasonable onlooker test". The clause relevantly states: (g) while on or off duty, by words or action, behave in a manner that is subversive of discipline or calculated to bring discredit on Fire and Rescue NSW… The following exchange ensued: Q. But even on your findings which, as you understand, Mr A challenges, even on your findings, you don't seriously say that Mr A on anything that was described to you was making a calculated attempt to discredit his employer when he had an alleged discussion with H, do you? A. Well, my interpretation of calculated could be with disregard, or anything like that. Q. Not really. Other sections refer to negligent, and that sort of thing. Calculated, can I suggest to you as someone whose profession it is to look at these things, calculated means you wish it, that's the result you wish; you wish to discredit your employer by making these remarks or doing these actions, not that it's an accident? A. Mr A was a senior firefighter, a station officer. My interpretation in making such comments must bring ‑ you must know that you're bringing discredit on the fire brigade. That in my interpretation would be a calculation that you've made. 1. In conclusion, Mr F suggested the contentions of Mr A that his discussion with the police was a casual conversation and "not really something that's work related" could not be substantiated. The police were present on official business and they were "taking an official statement off him". Mr G 1. Mr G is a NSW Police Superintendent and a Local Area Commander. His evidence comprised a record of interview. 2. Mr G was aware of the domestic violence incident that occurred on 1 January 2015. He was also aware that Mr B, Mr A's brother, was a Senior Constable within the Local Area Command. 3. Mr G understood that shortly after the incident, Mr H and Mr I took a statement from Mr A concerning the domestic violence incident. Mr H asked Mr A about his brother. Shortly thereafter, Mr A's demeanour changed and he started to raise his voice and made a number of statements against certain NSW police officers including himself. 4. Mr G explained that the allegation against him was that he was deleting events from the COPS system. Mr A had also contended that one of his constables was going be arrested and charged over a number of matters including intimidation and harassment against Mr B. 5. Mr A also made certain very inappropriate and disparaging remarks against Mr K suggesting that he was having sexual relations with his ex-wife. Mr G also referred to the numerous allegations against NSW police which have also been conveniently set out in the allegations put against Mr A by FRNSW. I do not pose to repeat them here. 6. Mr G considered the comments made by Mr A to his constables on 1 January 2015 were completely inappropriate, unprofessional and "to be quite honest, disparaging, disgusting with absolutely no basis whatsoever": For a station officer working for a government, particularly in another agency such as Fire – New South Wales Fire and Rescue, I think it's absolutely deplorable that a senior officer can say this to junior officers of another command without any basis whatsoever. So, as result of that, the sort some advice, firstly from Mr M because I was very upset about the comments not just about myself but more importantly, about the ones involving Mr K was a model family man and as I said, the complaints – the comments about him in particular were very disgusting and no basis whatsoever, so I spoke to Mr M about lodging a complaint so I just believed that this officer need to be spoken to because certainly in our organisation, the New South Wales Police, there is a code of conduct and ethics that this type of behaviour is certainly frowned upon and is not welcome, and I was sure that this would not the welcome in any other work environment, let alone the New South Wales government. I spoke to Mr M about it and he sent me the details to make a formal complaint via a letter to the New South Wales Fire and Rescue which I did. Hence, I had a discussion with Fire and Rescue are simply said, "Look, I'm happy to do whatever you want to do in relation to it, but I just feel this should be looked at by the fire department … 1. It was Mr G's evidence that he believed Mr A "does have issues, certainly with myself, it would appear here and certainly with the command and Mr K in particular due to some family law court issues involving his wife, again, who I've never met and do not know, but the common link or thread would appear to be Mr B ...". 2. Mr G referred to an incident involving Mr A and his wife in December 2013 concerning certain custody issues recorded on COPS where Mrs A "contacted police and asked them to do a welfare check because allegedly at the time, Mr A was not complying with the Family Law Court". Mr A subsequently contacted a police sergeant concerning this particular matter and advised that he was "Commander A": There was a discussion as to what he was a commander of and (he) indicated he was the Station Officer at the Fire Station, referred to himself as Commander A and was abusive and made a number of allegations of harassment and threatened to report the Sergeant to his barrister and the Police Integrity Commission because of his alleged inaction against his wife. Now I became aware of that and in hindsight, I wish I formalised it by way of letter and sending it to Fire and Rescue but at the time, I didn't. It was recorded contemporaneously in the system and due to other competing priorities, I never progressed it, but I think that just gives a little bit of background as to why I probably feel so strongly about progressing this current matter. 1. In cross-examination, Mr G said he was not personally involved in the domestic issues between Mr A and his wife as reported to the police. He was also unaware that Mr B had lodged a complaint with the Police Integrity Commission a month or two prior to the 1 January 2015 incident with Mr H. Mr G stated that he had not been contacted by the Police Integrity Commission in relation to the allegations made. He was also aware that Mr B made a number of complaints to the Police Integrity Commission similar to those ventilated with Mr H on or about 10 December 2014. 2. Mr G acknowledged that he had sought some advice from his Regional Commander and the Professional Standards Manager prior to lodging the complaint with FRNSW. He further acknowledged that he had sent a "Godfrey Report" to Mr M concerning the allegations made by Mr A. 3. Mr G explained how complaints are dealt with within New South Wales Police: … when a complaint comes in about myself or PIC, the region commander who is an assistant Commissioner will chair the complaint management committee. We have a professional standards command, and we have the Ombudsman oversighting us. I think we are one of the most oversighted organisations and our review functions are pretty good compared to a lot of other organisations. Mr H 1. Mr H is a Senior Constable, NSW Police. His evidence comprised a record of interview. Mr H confirmed that he did not know Mr A prior to attending the Fire Station on 1 January 2015. When he saw Mr A's name badge, he put "two and two together" that Mr A was Mr B's brother. 2. During the course of taking Mr A's statement, Mr H stated he asked how Mr A's brother was going as he had recently sustained an injury when working with the weapons unit. 3. Mr A then started to tell him about his brother's injury and how he was being mistreated by the police and how they were out to get him. The conversation then just focussed on how is brother was being treated by the police and it "just went on, and on". 4. Mr H recalled that Mr A was adamant that Mr K was having sexual relations with his ex-wife and Mr G was looking after him by deleting COPS events. Mr A told him that he had made a number of complaints to the Police Integrity Commission and was confident Mr K was going to be arrested and charged. Mr A also named another policeman who he alleged had fabricated evidence in a domestic violence matter involving him and his ex-wife. 5. Mr H proceeded to refer to the remaining allegations put by Mr A against NSW police which are conveniently set out in the allegations put against Mr H by FRNSW. I do not propose to repeat them here. Mr H was unaware of any reason why Mr A would deny the conversation that allegedly took place at the Fire Station. 6. In cross-examination, it was Mr H's evidence that Mr A had made the complaints as alleged during the course of the interview concerning the domestic violence incident on 1 January 2015. He was not aware that Mr A had made any previous complaints concerning members of the LAC. Mr H also stated that he had not had any direct conversation with Mr G concerning this particular matter. 7. Mr H stated that that when he returned to his Police Station after meeting with Mr A, he made a standard police report concerning the incident, known as a "Godfrey Report". He was unsure whether a copy of this report was given to the investigator. However, it would exist in the TRIM document management system. 8. Mr H stated that he had known Mr B for a "good 12 months" prior to the incident but had not previously met Mr A. Mr I 1. Mr I is a probationary police constable who attended the fire station on 1 January 2015 with Mr H. His evidence comprised a record of interview. 2. Mr I recalled that on the night of 1 January 2015, Mr A said "certain things about certain officers which didn't make sense to me". He had not met Mr B and on the night of the incident he did not know that Mr A and Mr B were related. 3. Mr I stated that the 1 January 2015 incident was his first domestic violence matter and he was heavily focused during the meeting with Mr A on "note taking" for the statement. In that regard, the following exchange ensued: Q. Did – did you notice a change in Mr A's demeanour from your arrival to – to leaving as far as him not – change in his demeanour? A. I think he was pretty consistent. Yeah. I – I wouldn't know basically. Yeah, (I) just more interested in what I was doing … My first DV so to speak. 1. In cross-examination, Mr I confirmed he could not recall any particular words that Mr A may have used during the course of the interview on 1 January 2015. He was unable to comment about Mr A's behaviour that night because "I don't know what's normal behaviour". 2. Mr I stated that while he was trying to write down what Mr A was telling him "word for word", Mr A was engaged in the conversation with Mr H. 3. Mr I stated that he was now aware that Mr A had denied the discussion with Mr H concerning the allegations that he is alleged to have made against certain police officers. Mr J 1. Mr J is the Manager, Conduct and Complaints for FRNSW. His evidence comprised an affidavit filed in support of FRNSW's case. Mr J's evidence was as follows: On or about 31 March 2015, a "FRNSW Community Complaint Form" was received by Professional Standards and an email from Mr G. To the best of my knowledge and search of the Professional Standards case management system – Resolve, the complaint was not received a second time or "re-lodged" at any time after 2 April 2015. The file notes are a complete and accurate record of the conduct an investigation of the incident that allegedly occurred on 1 January 2015 concerning Mr A at the Fire Station Mr A was informed of the outcome of the disciplinary determination by letter signed by the Commissioner (on) 3 June 2016 and hand letter by a Superintendent on 1 July 2016. This was the first advice Mr A received about the discipline termination made by the Commissioner in the matter. I had various telephone conversations with Mr A during investigation of the matter but I do not recall being contacted by a legal representative of Mr A and there is no record on file of such a call. Had I been contacted by a solicitor I would have explained the role of a support person to the effect that a legal representative may act as support person but not however act as a legal advocate or cross-examine the investigator during the interview in accordance with 9.3 of the Procedural Guidelines for the Management of Conduct (annexure A). 1. In cross-examination, Mr J affirmed the file notes were a complete and accurate record of investigation to the best of his knowledge. He was, however, familiar with the file at the time of swearing his affidavit. He could not recall having a telephone conversation concerning the complaints with Mr G. Mr J the following exchange ensued: Q. And you were responding there, weren't you, to a suggestion you'd seen or been told about in Mr A's statement to the effect that he'd initially been told after responding to this allegation that it wasn't being pursued and was surprised to later, in his words, have it, he thought, relodged and reagitated in about October when he found out about it again? A. Sorry, the question again is? Q. I'll try and break it up. Do you recall being told or reading that Peter said that his union had told him in about May of 2015 after he responded to the complaint that it wasn't being taken any further by Fire and Rescue? A. Do I recall being told that? Q. Do you recall reading or being told that Mr A had said that? A. I have some recollection that that was an issue, yes. Q. He seemed to take the view, rightly or wrongly, that it had been revived or relodged in some way later in the year? A. I believe that was an issue for him, yes. Q. That's what you're purporting to respond to in the second sentence of paragraph 3 of your affidavit; is that right? A. Yes. Q. You really can't tell us whether a phone call was or wasn't made by Mr G at some time after initially lodging a written complaint, can you? A. You ask me do I have monitoring of all phone calls to Fire and Rescue by Mr G? Q. You're not in a position to confirm or deny that that happened, are you? A. No. 1. Mr J was unable to agree with the proposition that given the investigator was only appointed on 20 August 2015, some months after the Union had told Mr A that the complaint wasn't going to be taken any further, the complaint against Mr A was only revived following your telephone call from Mr G. 2. Mr J stated that he commenced his current role in May 2015 and at that point in time, there was a significant backlog of work which subsequently caused all three investigators to seek employment elsewhere. 3. Mr J confirmed that it was his understanding that Mr A did not wish to be the subject of a record of interview with the Investigator. 4. Mr J was aware that Mr A and Mr B both contended that they were being specifically targeted by the Police. In that regard, he confirmed that the Commissioner had been informed that Mr B's criminal charges had been withdrawn. Mr L 1. An affidavit filed by Mr L, the respondent's Employee Relations Officer was tended without objection. Mr L was not required for cross-examination. The affidavit set out a range of reports, correspondence, including email correspondence and a medical report from Professor Glozier relevant to the case. Case for the Appellant Mr A 1. Mr A is appellant in this matter. A substantial part of his first statement dealt with the circumstances surrounding the domestic violence incident on 1 January 2015 and the subsequent series of events commencing in or around March 2015 when a complaint was lodged by Mr G with FRNSW Professional Standards "regarding the content of the informal conversations which took place at the incident in January 2015". A copy of the complaint was attached to his statement. Mr A also referred to the Union's correspondence in support of his case forwarded to the Commissioner in January 2016. 2. Mr A was adamant that he did not have the conversation as alleged with NSW Police on the night of 1 January 2015. The conversation that did occur only concerned the alleged assault. It was his evidence that he had not engaged in misconduct as alleged and defined in the Regulation. 3. Mr A also provided information relevant to the separation from his wife and a number of subsequent "incidents" that had occurred. Mr A considered these incidents occurred as a result of his ex-wife's alleged relationship with a New South Wales police officer. All charges pressed against him were subsequently dismissed: 1. He separated from his wife on 17 June 2013; 2. In or around October 2013, he became aware that his ex-wife was in a relationship with a New South Wales Police Inspector; 3. On 30 June 2013, he was served with AVO and ADVO applications in relation to a matter being pressed by his ex-wife; 4. On 15 July 2013, his barrister took an AVO against his ex-wife; 5. On 31 October 2013 when collecting his children from a McDonald's store his former wife stated: I'm going to have you and your brother arrested and charged with intimidation. How? I'm sleeping with Mr K. 1. On 4 November 2013 at 9.00 am he received telephone call from Mr K who stated: I will lock you and your brother up. I will set you up using (ex-wife's ) statements and take your kids away from you and give them to (ex-wife). I am an Inspector of Police and will have you both arrested and thrown in in gaol. 1. In early November 2013 he attended the FRNSW local office and had a conversation with an Acting Superintendent where he made a request to be transferred to any station out of his current FRNSW LAC so as to avoid further conflict as "I was being constantly harassed by NSW Police". Mr B was also present with him at that meeting; 2. On 16 December 2013, he was arrested and held at a local police station for breach of an AVO. However, he was later released without charge; 3. On 22 October 2014, an Interim Apprehended Domestic Violence Order was revoked and an Apprehended Violence Order was dismissed; 4. On 16 July 2015, a search warrant was executed by police detectives at his home address and the search warrant indicated they were searching for "1 x black in colour mobile telephone handset". 1. Between 14 October and 30 December 2015, Mr A was placed on sick leave due to stress. Mr A currently works at another Fire Station and stated: I am happy to travel further so as to remain there and stay out of (his former LAC) to avoid any further conflict. 1. In a second statement, Mr A repeatedly denied the allegations. He also recalled that on the night of the incident the following exchange with Mr H: Q. You are required to supply a statement now to us. A. As per procedure any statement must go through the chain of command and request through the legal services unit. Q. If you do not provide a statement to us now, I am going to arrest and take you back to (name) police station and charge you. Q. Last chance, are you going to give us (a) statement or come back with us? 1. Mr A said he felt "pressured, threatened and intimidated to supply a statement under duress". 2. Mr A stated that he declined to be interviewed by the investigator on the advice of his former solicitor, as Mr G had told his previous solicitor that he could not be present during the interview. 3. FRNSW had been informed of "criminal offences to the children". However, no one had exercised their duty of care to report these incidents to NSW Police. Mr A further contended the FRNSW Commissioner had failed to report these serious matters to his counterpart, the Police Commissioner. 4. In cross-examination, Mr A confirmed that he had supplied, through his Union, a one page statement in response to the allegations. He also stated the Union had suggested to him that he retain a solicitor "as the matter involved criminality and that I'd reported it to Fire and Rescue". 5. With respect to his statements filed in these proceedings, Mr A was unable to support his contention set out in those statements that: I also made statements regarding the assaults I witnessed in the presence of other crew members who were walking in and out whilst I was making that statement. The following exchange ensued: Q. The statement wasn't made in their presence, was it? A. Well, where the watch room is situated, I can't tell whether the firefighters are coming down the stairs and walking into the office, because we were in the common room. Q. Sir, you just made this up because you wanted to make it sound believable, didn't you? A. No. 1. Mr A acknowledged that Mr M wrote to him on 10 December 2014 and informed him that the various complaints that he had made against NSW Police officers had been investigated and been dismissed. The following lengthy exchange ensued: Q. You were angry about that, weren't you? A. Considering that the police had not considered the video of the alleged sexual assault. Q. For whatever reason, you were angry about that, weren't you? A. No. Q. That was something that stuck in your craw, wasn't it, and the reason why you raised these matters with Constables H and I was because you were still angry about it on 1 January, weren't you? A. No. Q. You had an issue with the fact that for whatever reason, you believed the police had not pursued or investigated the matter properly? A. I believe the police have covered up criminal, sexual offences which there are photos of. Q. You wanted everyone to know about your gripe with New South Wales Police, didn't you? A. I don't have a gripe with New South Wales Police. I have mate which are police officers. I have an issue with police officers that have covered up the sexual assaults of my children. Q. You keep saying that, sir. You had issues with the police officers that you named when you spoke with Mr H, didn't you? A. No. Q. You named those police officers because those police officers were the police officers that you had a gripe with; correct? A. Those police officers were named in a previous report that I lodged with the Family Law Court in regards to what they'd done in regard to the children, sir, which… had copies of, those statements. Q. You told Mr H that you believed that Mr G was able to get away with whatever he wanted, didn't you? A. No. Q. You told Mr H that Mr G was able to change things on the COPS system and did so, didn't you? A. No. Q. You told Mr H all of the things that you complained about in respect of (names), didn't you? A. No. 1. Mr A agreed that neither he nor his Union had provided any videos and pictures concerning the Police "cover up" allegations to FRNSW. 2. Mr A rejected the accusation that he had a gripe with NSW Police. With reference to the Union's response in part which states, "Mr A may have been injudicious, boorish, inappropriate in airing his views of individual police officers", Mr A conceded it was common knowledge within the Fire Station that he had made various complaints against police officers. 3. Mr A agreed with the proposition that the matters that he is alleged to have told Mr H were similar to those matters subject to the earlier complaint that was dismissed by Mr M on 10 December 2015. He also agreed with the proposition that it would be "complete rubbish to suggest that Dr Glozier in his report said that the childrens' sexual assault, indecent assault had been covered up by the NSW Police Force. 4. With reference to his contentions that he had not been afforded procedural fairness and the process had been unreasonable, Mr A conceded that his reliance on these claims was restricted to the interaction between his former solicitor and Mr J to the effect that he was unable to be interviewed by the Investigator in the presence of his then solicitor. The following exchange ensued: Q. You say that was the procedural unfairness? A. Well, the Commissioner or professional standards should have said to me what additional information they required. Then I could have supplied that through my solicitor. Q. You had every opportunity to answer these allegations at every stage of this process, didn't you? A. No. Q. You could have written on day 1 to the Commissioner or anyone else at the fire brigade giving them your version of events about these allegations; correct? A. I've just given you my versions of events and why things have occurred, and you've just said that it's all a bunch of crock, you know, as to why I've been targeted. So why would that have made any difference. Q. Sir, you had every opportunity all along the way to write to the Commissioner and tell him what your version of events was, did you? A. No. Q. You could have written to him and said‑‑ A. I had written to him, sir. I had written to him through the‑‑ Q. What else did you want to say? A. I don't know; what else does he want to know. Q. He asked you what your version of events were; what happened‑‑ A. I basically told him. Q. What else did you want to say? A. On the night in question‑‑ Q. So there was nothing else you wanted to say? A. That I thought relevant, no. 1. In relation to his interview with Police on 1 January 2015, Mr A stated the following: A. Yes, I was told on the night when they turned up that I could either supply a statement there and then on the night or I would have to go back with them to the Police Station and basically I supplied a statement to them under duress because I felt that if I left the station that night ‑ being New Year's Day ‑ that they wouldn't be able to man it. Q. You don't say anything about duress there. I just want to ask you, forget about how you felt, is what they said to you what's contained in that document? A. Who are we talking about ‑ the police officers? Q. No, in relation to this issue about being asked to prepare a statement. Have you included everything there that was said to you about being asked to make a statement? A. Could you be more specific, sir, as to what you're after? Q. No, I can't. A. I supplied a statement as to what occurred. … Q. But all the policeman said to you was we want to take a statement from you. We can take it here or the other alternative is that you come back to the Police Station and we take it there, is that right? A. Their exact words were "You can come with us or you can be placed under arrest and come back with us to the station and give your statement until you explain it". 1. In response to a series of questions, Mr A did not agree with the proposition that if someone had threatened to arrest him and that he had felt under duress, those circumstances would have been important to include in a statement in support of his case before the Commission. 2. Moreover, Mr A did not consider that it might have been important to include those alleged circumstances in his first statement filed in these proceedings. 3. Mr A was adamant that in addition to the one page statement that he had provided to FRNSW through his Union, he had provided further information through his solicitor. He later acknowledged that the additional information filed was contained in the two statements filed in these proceedings. 4. In relation to allegation that Mr K was sleeping with his wife, Mr A claimed that he had raised this particular matter with his senior officers who he understood had passed it through the "Chain of Command". He could not explain why the Inspector's name was set out in square brackets. He rejected the proposition that he had speculated that he was the named Inspector. The following exchange and ensued: Q. Is it because she said, "I'm sleeping with an inspector" and you assumed that it was Mr K? A. No, it was Mr K and basically Mr K sexually assaulted my daughter, which the police covered up, which I've made statements to that effect. Mr B 1. Mr B is a Senior Constable with New South Wales Police and works within the Operational Support Group of the LAC. He is also a Weapons Trainer and an Operational Safety Instructor. 2. In June 2011, Mr B applied the vacant position of Weapons Trainer at the LAC. There were four other candidates for the position including Mr H. Mr B was chosen for the position and in that regard, he contended: There was a lot of jealousy and anger from Mr H that I had won the position over him and that the (Superintendent) had chosen me for the vacant position. 1. The next available weapons trainer position was won by an officer other than Mr H. It was Mr B's evidence that the Mr H was motivated to make a complaint against Mr A because "he had a grudge, was resentful" and had a score settle. 2. The balance of Mr B's statement referred to a subpoena that Mr I had served on the woman involved in the domestic violence incident that occurred on 1 January 2015 to attend Court. However, she had failed to turn up as required. Shortly stated, Mr B subsequently informed Mr I that the subpoena was required to be served seven days prior to the hearing. In this particular case, it appears that the subpoena had not been served at least seven days prior to the hearing. Mr I subsequently told Mr B that: (He) got in the shit off the magistrate for not serving subpoena". Mr B also contended: 1. Mr I had a failed prosecution and "as result his progression from Probationary Constable to the rank of Constable would have been put back three to six months due to his mistake which he is accountable for". Submissions 1. In determining this application, I have given consideration to the submissions put on behalf of FRNSW and the appellant, Mr A. Those submissions essentially reflect evidence which was the subject of vigorous cross-examination. Accordingly, I do not propose to canvass those matters again. Disposition of Appeal 1. This matter concerns an appeal under Part 7 of the Industrial Relations Act 1996 ('the Act') brought by Mr A against the disciplinary decision of FRNSW to reduce him in rank from Station Officer to Senior Firefighter for a period of 12 months. The decision is an appealable decision within the meaning of s. 97(1)(b) of the Act. The appeal was brought within the statutory time limit. 2. In Bindley v Secretary, Industrial Relations for Corrective Services NSW, Newall C observed at [5] and [6]: 5. I turn first to the law within which this matter falls to be determined. A hearing of this kind is a hearing de novo, as s 100C(2) of the Act provides. I note also s. 100C(3) which addresses questions going to procedural fairness. The jurisdiction that the Commission exercises in a matter of this kind is one which is protective of the Public Service, of public servants and, I divine, of the public. It is important to understand that this appeal does not proceed on the basis of determining whether or not the allegations put to Mr Bindley in the correspondence to him - as, with some variations, they were ultimately held to be made out - can be sustained in their terms. That is not the approach which, on the jurisprudence of the Commission as it binds me has been established, is to be adopted. 6. The Commission is not bound to carry out its review in an appeal of this sort only in relation to the specific allegations of misconduct upon which the punishment was based. Indeed it must not confine itself to those matters. Surprising though it may seem at first blush, the Act does not contemplate a public sector disciplinary appeal against a decision imposed because of what was held to be misconduct being dealt with by a determination of whether or not the employee had engaged in misconduct. And the Commission is not entitled to disregard matters relevant to the exercise of its discretion to determine such an appeal, whether or not they are embraced in the allegations of misconduct or at all. In fact there is no requirement on the Commission to make a finding that the appellant had engaged or had not engaged in the misconduct as charged at all before exercising this protective function which is given to it under Part 7 of the Act. I agree with the propositions advance by the Commissioner. The legislative framework 1. The relevant provisions of Chapter 2, Part 7 of the Act are set out below: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: … (b) a decision to reduce the rank, classification, position, grade or pay of the employee, … 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. … 100C Decisions with respect to appeals (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. … 100G Presentation of cases (1) A public sector employer must present the employer's case to the appellant at least 7 days before the hearing of a disciplinary appeal. (2) At the hearing of an appeal under this Part, the public sector employer's case is to be presented first. (3) Nothing in subsection (2) removes from an appellant or any other person the onus of proving any ground on which the appellant relies. 1. An appeal under Part 7 is a hearing de novo and is determined by the Commission upon consideration of the evidence and submissions of the the parties: Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40. Shortly stated, the Commission does not simply review in a procedural sense the decision of the initial decision maker: Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91. 2. The Commission may allow or disallow the appeal or make such other decision relevant to the appeal as it thinks fit. There is no constraint upon the Commission to simply accept or reject the initial decision subject to appeal. It may decide to impose another sanction if it sees fit, including one harsher than that initially imposed: Grech v State Transit Authority [2014] NSW IRComm 1030 at [8]. 3. I note that Mr A has complained that the Investigator did not interview Mr K or, that he did not give evidence in the proceedings. It was, of course open to Mr A to subpoena him. 4. It was not until October 2015 that Mr A was advised the allegations would be investigated by a private investigator. The Commissioner subsequently wrote to Mr A in October 2015 to confirm that FRNSW proposed to investigate allegations that he had engaged in misconduct in breach of the Regulation and/or the Code of Conduct. 5. Mr A contends that he was not afforded procedural fairness principally on the grounds that he was not provided with the various statements of record received from witnesses or the investigation report by the Investigator. 6. On the material before the Commission, I consider Mr A had a very clear understanding of the allegations put against him. They were short, sharp, specific and precise. That said, Mr A's plea that he was denied procedural fairness must fail in circumstances where he understood the allegations and was afforded sufficient time to consider them properly before drafting his response. 7. I accept the evidence of Mr H, a sworn Police Officer and determine that it is more probable than not that the conversation as alleged took place at the Fire Station on 1 January 2015. 8. In the specific circumstances of this case, I have determined the decision of the Commissioner to impose a disciplinary sanction on Mr A was not in error. However, it is very apparent on the material before the Commission that Mr A has been deeply affected by the events surrounding his marriage break up and the fact that as a single parent, he is trying to look after his children when the opportunity arises to the best of his ability. 9. By way of further observation, it is also apparent that the litigation treadmill concerning this matter and others referred to in proceedings has cost him dearly. That is not to say that the Commission by any means sanctions the alleged conduct of Mr A. Quite the opposite. 10. Mr A has been working at a Fire Station other than his substantive Fire Station for a period of time. His evidence was that he is happy to be working there and away from the stress related to his previous Fire Station and LAC. There was no evidence pressed by FRNSW to the contrary. 11. In determining this appeal, I have paid particular regard to the expected financial impact of the demotion on Mr A and his family in the context of a protective rather than a punitive jurisdiction. I consider the demotion for a period of 12 months is too harsh when viewed against Mr A's personal circumstances. I have also considered the responsibilities upon FRNSW officers and the policies raised in proceedings concerning mandatory employee compliance obligations. 12. Mr A needs to clearly understand that when on duty, he is on duty as a representative of FRNSW and when the police came to the Fire Station to interview him about the domestic violence incident, he had no right to raise malicious allegations that have the capacity to cause reputational damage to FRNSW. Any further disciplinary issues could result in dismissal. While Mr B believed in his own mind that the allegations were true, there was no evidence to support that proposition. 13. In determining this appeal, I propose to quash the decision to demote Mr A and order an alternative penalty, that being a reprimand and a fine of $5200. The impact of that penalty remains significant in my view. Orders 1. The Commission makes the following orders: 1. The appeal of Mr A in this matter is allowed. 2. The decision of the Commissioner, as the delegated decision maker for the respondent, that the appellant be demoted from Station Officer to Senior Firefighter with effect from 17 June 2016 is quashed and in lieu thereof, Mr A shall receive a reprimand and a fine of $5200, to be paid in fortnightly instalments or as otherwise agreed between the parties within 12 months of this Order. 3. These orders take effect from today, 31 May 2018. J D Stanton 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: 01 June 2018