Buchanan v Fire and Rescue NSW [2020] NSWIRComm 1019

Industrial Relations Commission New South Wales Medium Neutral Citation: Buchanan v Fire and Rescue NSW [2020] NSWIRComm 1019 Hearing dates: 25 and 26 February 2020 Date of orders: 19 March 2020 Decision date: 19 March 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application rejected on basis that it was made out of time Catchwords: VICTIMISATION – application made out of time – no sufficient reason to accept application – Deed of Agreement – settlement of industrial dispute – applicant claimed he was not bound by the terms of the settlement Legislation Cited: Industrial Relations Act 1996 Cases Cited: Bossak v Murrumbidgee Local Health District [2019] NSWIRComm 1054 Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 Caleta Trpimir v Northern Sydney Area Health Service [1995] NSWIRComm 38 Davis v Amalgamated Television Services Pty Limited [1998] 81 IR 364 Category: Principal judgment Parties: Raymond Buchanan (Applicant)

Fire and Rescue NSW (Respondent) Representation: Mr C McArdle, solicitor, McArdle Legal (Applicant)

Ms P Thew of counsel (Respondent) File Number(s): 2019/00191909

DECISION 1. On 20 June 2019 there was filed in the Office of the Industrial Registrar on behalf of the applicant, Raymond Buchanan, an Application for Relief from Victimisation ("the Application") pursuant to s 213 of the Industrial Relations Act 1996 ("the Act"). The respondent to the Application is Fire and Rescue NSW ("FRNSW"). 2. The applicant's substantive position with the respondent is Inspector stationed at Katoomba within the Metropolitan West 3 region ("MW3") which includes the Blue Mountains area. 3. The Application was in the following terms: A. The Applicant claims an order: 1. That the Respondent cease victimisation arising because of characteristics of the Applicant provided for in Section 210 (1) (a), (d), (e), (f), (g), and (j). 2. That the conduct described in "B", below, cease. 3. That the Respondent be directed to provide the Applicant with access to promotion and security of tenure that would be reasonably expected, having regard to the Applicant being an employee of deserved good repute and efficiency. 4. In particular, that the Applicant be immediately returned to his substantive position of Duty Commander, Metro West 3. 5. That all assertions or recordings negative to the Applicant be removed from his record. 6. That, further and in addition, the Respondent direct (and enforce such direction), employee Sean Falconer, to refrain from making or continuing false claims against the Applicant. and claims an order for payment of the sum of $110,000 being for: 1. Reimbursement of lost earnings being the difference between amounts paid, and overtime foregone, higher duties allowance not received, car allowance denied, travelling and relieving allowances denied; and 2. Compensation for the conduct notified herein.