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. The legislation 1. Relevant provisions of s 210 of the Act are set out below: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or …………………………….. (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or ……………………………….. (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or ……………………………….. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 1. Section 213 of the Act is in the following terms: 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. Background 1. Sean Falconer is employed by the respondent as its Regional Training Officer for MW3 based at Katoomba. Mr Falconer reports to Station Officer Kevin Tyldsley, Team Leader, Regional and Retained Training, at the respondent's State Training College at Orchid Hills. Mr Tyldsley is Mr Falconer's line manager. 2. According to the applicant, in late 2016 he raised with a number of the respondent's senior managers, including Mr Tyldsley, concerns he had with the failure of Mr Falconer to train a sufficient number of retained firefighters as motor and/or tanker drivers. The applicant was concerned that this situation was hampering the respondent's capacity to respond in a timely way to emergency calls within MW3. The applicant also raised other concerns he had about Mr Falconer's work performance. 3. Mr Falconer subsequently made complaints that he had been bullied and harassed by the applicant, which complaints were then investigated by Theresa Smith, Senior Investigation Officer, Professional Standards Unit ("PSU"), FRNSW. The applicant claims that the investigation of Mr Falconer's complaints against him constituted victimisation of him by FRNSW. 4. The following has been extracted from the Investigation Report prepared by Ms Smith, which was finalised on 13 December 2017: 1 Executive Summary 1.1 This matter involves allegations of bullying and harassment behaviour towards Leading Firefighter (LF) Sean Falconer by Inspector Raymond Buchanan. This matter, which is a continuation of previous allegations initially dealt with by Local Management Action, was registered on 24 May 2017. 1.2 LF Falconer is the Senior Instructor Country (SIC) for Metro West 3 (MW3), and as such reports through to the Education & Training Directorate (E&T). His immediate Supervisor is Team Leader (TL) Regional Training, Kevin Tyldsley. He is required to work co-operatively with MW3 Zone Management Team, but E&T retain direct authority and responsibility for his role, it's requirements, and LF Falconer's performance. 1.3 Inspector Buchanan is the Duty Commander for MW3. The responsibilities of this role include optimising the capability of the MW3 crews, which involves managing resourcing, rostering and the operational readiness of stations across the Zone to meet crewing, specialised skills distribution and other operational requirements, and ensuring the integration of training and development and the redress of capability gaps. Much of this training is delivered by the Senior Instructor Country assigned to his Zone, which in the case of MW3 is LF Falconer. 1.4 Inspector Buchanan was interviewed on 23 August 2017, and provided further written submissions on 11 September 2017 and 29 October 2017. 1.5 This report finds that the allegations are sustained, and that Inspector Buchanan has breached Fire & Rescue NSW (FRNSW) legislation and policies, namely, the Fire Brigades Regulation 2014, (the 'Regulation'), the Code of Conduct and Ethics and the Preventing and Responding to Bullying and Harassment policy. 2 Background 2.1 LF Falconer commenced with FRNSW on 1 March 1999. He progressed to the rank of Senior Firefighter on 13 March 2009, and was appointed to Leading Firefighter on 16 April 2016. He has served as a Metropolitan Trainer and from 14 March 2011 moved to his current Regional & Retained Training role of Senior Instructor Country. 2.2 Inspector Buchanan commenced with FRNSW on 29 April 1994. He progressed to Station Officer on 13 March 2009, and then to Inspector on 24 August 2012, stationed at Regional South 1. He transferred to MW3 on 24 September 2015. He is currently serving under Superintendent Selwyn Mathias, Zone Commander MW3. 2.3 On 24 May 2017 Professional Standards registered a complaint from Leading Firefighter Falconer alleging bullying and harassment by Inspector Buchanan of Metro West 3 (MW3). The allegations related to what Leading Firefighter Falconer believed to be an excessive and relentless scrutiny and commentary given to his activities by Inspector Buchanan. 2.4 This matter is preceded by a matter (CMS/2016/0253) which was registered with Professional Standards on 24 November 2016. That matter concerned alleged bullying and harassment of LF Falconer by Inspector Buchanan, and was assessed for Local Management Action. 2.5 On review of the documentation forwarded to Professional Standards in support of LF Falconer's original allegations, there was a prolific amount of emails between LF Falconer and Inspector Buchanan. The incidence and content of several of the emails from Inspector Buchanan to LF Falconer was assessed as being of a bullying nature. 2.6 Inspector Buchanan was given a verbal directive by his Zone Commander not to communicate with LF Falconer in February 2017. This directive was breached by Inspector Buchanan. 2.7 LF Falconer lodged a Worker's Compensation claim on 1 March 2017 alleging bullying and harassing behaviour by Inspector Buchanan (then Acting Zone Commander MW3), in which the date of injury was recorded as 1 September 2016. The claim was declined on 10 July 2017 with the provision for LF Falconer to work full time hours but not to have contact by any means with Inspector Buchanan. 2.8 On 20 April 2017 Superintendent Mathias, in consultation with Professional Standards, wrote to Inspector Buchanan and specifically directed him not to communicate directly with LF Falconer. 2.9 When this instruction was breached by Inspector Buchanan on two occasions, the current matter was registered and a Notification of Investigation was sent to Inspector Buchanan on 10 July 2017. 2.10 In his verbal and written submissions, Inspector Buchanan maintains that he was dissatisfied with LF Falconer's work routines, performance, availability and attendance, and his emails scrutinising these aspects of LF Falconer's performance was his way of attempting to manage and improve LF Falconer's performance. He further states that his attempts to raise these issues with LF Falconer's manager and senior management resulted in no action being taken, so he therefore attempted to manage LF Falconer directly. 2.11 On 4 May 2017, Inspector Buchanan breached the directive contained in the letter of 20 April 2017 from Superintendent Mathias by copying LF Falconer in on an email regarding SIC relief coverage. 2.12 On 8 May 2017, LF Falconer was conducting PATs at Katoomba Oval, and he alleged that Inspector Buchanan arrived and approached and spoke to him. Inspector Buchanan admitted that this had occurred but submitted mitigating circumstances. 2.13 On 24 May 2017, Professional Standards registered a new bullying and harassment complaint on behalf of LF Falconer against Inspector Buchanan. 2.14 On 10 July 2017, a Notice of Investigation was sent to Inspector Buchanan advising him of the allegations against him. 3 Allegations 3.1 On 8 May 2017, at approximately 1000 hours, you failed to follow a written and verbal direction from your Zone Commander, Superintendent Mathias, not to communicate directly with LF Falconer, in that you approached and spoke to LF Falconer whilst he was conducting Physical Assessment Tests at Katoomba Oval. 3.2 That in circumstances where there has been escalating conflict between you and LF Falconer, and where you had been specifically directed by your Zone Commander, Superintendent Mathias, both verbally and in writing, not to communicate directly with LF Falconer, your direct approach and communication with LF Falconer constitutes bullying. 1. After analysing the evidence gathered during her investigation, which included various pieces of correspondence between the applicant and Mr Falconer and certain directives which had been given to the applicant by senior management about his dealings with Mr Falconer, Ms Smith made findings that both allegations were sustained and made the following recommendations: 6 Recommendations 6.1 That the Decision Maker accepts the investigation findings, as detailed above. 6.2 That the Decision Maker determines that the behaviour which was sustained meets the threshold for Misconduct under Part 4 - Misconduct, Clause 33 of the Fire Brigade Regulation 2014. 1. By letter dated 5 February 2018, the applicant was advised of the outcome of the investigation into the complaints made against him and the proposed remedial action which had been determined in response to that outcome. By correspondence dated 18 and 19 March 2018, the applicant provided a comprehensive written response to the Investigation Report and the findings contained therein. Representations were also made on behalf of the applicant by his union, the Fire Brigade Employees Union ("FBEU"). 2. By letter dated 7 May 2018, Robert McNeil, Assistant Commissioner, Regional Operations, FRNSW, advised the applicant that the remedial action that would be imposed upon him would be to transfer him for a period of up to 12 months to Metropolitan West 2 ("MW2") zone office at Parramatta where he would be required to undertake professional training to develop his managerial and leadership skills. In addition, the applicant would be monitored for the duration of the transfer through the implementation of a Performance Improvement Plan. He would not be allowed to undertake higher duties to the rank of Superintendent until he had completed the remedial period of the transfer. In addition, the rental subsidy of approximately $20,000 per annum which he was receiving whilst living in a FRNSW rented property at Springwood pursuant to clause 30 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 ("the Award") would not apply during the period of the transfer. The transfer was to take place 28 days from 4 June 2018. 3. The applicant and the FBEU continued to contest the remedial action which had been determined by Mr McNeil. The applicant did not report for duty at Parramatta and on 8 July 2018 went off work on sick leave. He remained off work until 9 October 2018. The 2018 dispute proceedings 1. On 11 September 2018, the FBEU filed a notification of dispute pursuant to s 130 of the Act ("the 2018 Dispute") The subject matters of that dispute notification included the following: c. On 7 May 2018 Inspector Raymond Buchanan was advised that the Department had determined to impose remedial action, and that this remedial action would include transfer from the Katoomba Zone Office to the Parramatta Zone Office and the cessation of his rental subsidy (approximately $20,000 per annum)… …………………………. g. The Union seeks the Industrial Relations Commission's assistance in resolving this dispute regarding transfer as a form of remedial action, the imposition of financial penalty by way of remedial action and whether disciplinary action and remedial action can be applied concurrently. 1. The then Chief Commissioner Kite SC convened a compulsory conference with the FBEU and FRNSW in matter number 2018/00278798 on Wednesday, 12 September 2018. The compulsory conference was reconvened on Thursday, 20 September 2018. On that occasion the representative of the FBEU handed to the Chief Commissioner a document which was said to be a settlement put by the union to FRNSW the previous day. The document contained the following: Inspector Buchanan Inspector Buchanan will voluntarily transfer for the purposes of remedial training to the MW2 Zone Office at Parramatta, for the first 3 months on the Award's Special Roster followed by a further period on the Award's Standard Roster on a single yet-to-be-determined Platoon. At the conclusion of these two periods, which combined will not exceed 12 months, Inspector Buchanan will return to the MW3 Zone Office at Katoomba on the Special Roster. While attached to the MW2 Zone Office, FRNSW will continue to pay Inspector Buchanan's rental subsidy under the Award's Clause 30. Inspector Buchanan will receive no allowance or other compensation for working at the MW2 office unless he is appointed as a Relieving Officer, in which case Inspector Buchanan will then be entitled to the payment of return kilometres to and from the MW2 Zone office. 1. The representative of the FBEU also handed up to the Chief Commissioner a number of documents entitled "Deed of Agreement" relating to the applicant. These documents had not been executed at that time. 2. The Chief Commissioner reconvened the compulsory conference on 26 September, 3 October and, lastly, on 10 October 2018. Later on 10 October 2018, the FBEU filed in the Office of the Industrial Registrar a document entitled "Deed of Agreement" together with a Notice of Discontinuance in matter number 2018/00278798. The "Deed of Agreement" was dated 10 October 2018. The parties to the deed were FRNSW and the FBEU. It was signed by Leighton Drury, State Secretary of the FBEU, on behalf of the union and by Joanne Prados-Valerio, Senior Industrial Relations Officer, on behalf of FRNSW, and contained the following: THIS DEED OF AGREEMENT made on 10th day of October 2018. BETWEEN Fire and Rescue New South Wales of 1 Amarina Avenue, Greenacre NSW 2190 (FRNSW); AND Fire Brigade Employees' Union of NSW of 1-7 Belmore St Surry Hills NSW 2010 (FBEU). (the Parties) RECITALS A. An internal investigation found Inspector Buchanan engaged in misconduct. B. The FBEU commenced dispute proceedings in the NSW Industrial Relations Commission on 11 September 2018, case number IRC 2018/278798. C. The Parties have agreed to settle the matter in respect of Inspector Buchanan with FRNSW on the conditions set out in this Deed. OPERATIVE PART 1. The Parties agree to the arrangements as set out in the letter sent to Inspector Buchanan by FRNSW dated 7 May 2018 (Attachment B of the Dispute Notification in IRC 2018/278798) (Attachment B) with the exception of the rental subsidy payments to Inspector Buchanan under Clause 30 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 (the Dispute) and the start date for the transfer. 2. The transfer in Attachment B commenced on 8 October 2018. 3. FRNSW will continue to pay Inspector Buchanan's rental subsidy under Clause 30 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 whilst he is attached to the MW2 Zone Office. This payment will be subject to any review of all employees receiving Clause 30 payments that may occur in the future. 4. Inspector Buchanan will receive no allowance or other compensation for working at the MW2 Zone Office unless he is appointed as a Relieving Officer, in which case Inspector Buchanan will then be entitled to the payment of return kilometres to and from the MW2 Zone office. 6. No Party will divulge or publish the Dispute contained in this Deed. 7. FBEU hereby releases FRNSW from all liability relating to or arising from the Dispute; save as to Inspector Buchanan's right to claim under NSW Workers Compensation legislation as may be applicable. 8. Not later than 10 October 2018, the FBEU will file and serve a Notice of Discontinuance with the Industrial Relations Commission of NSW for IRC 2018/278798. 9. The Parties agree that it is their intention by entering into this Deed to resolve once and for all claims of every description arising out of the Dispute and IRC 2018/278798. 10. The Parties agree that the payments and other things done under this Deed are made without any admission by FRNSW to make those payments or do those things. 11. The Parties agree that the payments and other things done under this Deed are made without any concession by the FBEU as to Inspector Buchanan's transfer to and from MW2 and/or his rights and entitlements arising from that transfer, …………………………….. 13. This Deed sets forth the entire agreement resolving the Dispute between the Parties hereto and supersedes any and all prior agreements or understandings between the Parties and may be modified only by written instrument executed by the Parties hereto. 14, This Deed shall be binding upon and inure to the benefit of the Parties hereto and to their heirs, executors, successors and assigns and may be pleaded in bar of any action, suit, claim, demand, complaint or proceedings to which this Deed relates. 15. This Deed may be executed in counterparts, and each such executed counterpart shall be deemed an original document. 16. This Deed is governed by the laws of New South Wales and the parties submit to the jurisdiction of the Court exercising jurisdiction in that state. 17. Any waiver by a Party of any breach or non-observance of this Deed shall not be deemed to be a waiver of any other breach or any other non-observance. 18. Each and every covenant, obligation and restriction and each and every part thereof shall be deemed to be severable and an independent covenant, obligation or restriction. If any of the provisions or part of any provision of this Deed is held by a Court of competent jurisdiction to be void, invalid or otherwise unenforceable, then such provision or part thereof shall be deemed to be eliminated or modified to the extent which, in the Court's opinion, it is necessary to make the remainder of the clause enforceable. 19. The Parties agree that they shall keep the terms of this Deed confidential and acknowledge that the terms of this Dispute and Deed are not to be disclosed except: a) For the Union Communication titled SlTREP 27/2018 (Attachment A of this deed) b) by express prior written agreement of each Party; c) by any Party to a professional advisor for the purposes of obtaining advice from that adviser; d) or as required by law; e) as may be required in any proceeding relating to any claim for workers compensation entitlements that might be; or f) as may be required for the purpose of enforcing this Deed or any of the terms of it. Executed as a Deed by the Parties 1. As will be apparent from the terms of the deed, the main difference from the initial determination of remedial action made by Mr McNeil, which was set out in the letter to the applicant of 7 May 2018, and the settlement of the 2018 Dispute between the FBEU and FRNSW, was that the applicant would retain the rental subsidy which was paid to him pursuant to clause 30 of the Award. 2. The applicant remained off work from 8 July 2018 until Tuesday 9 October 2018 when he reported for work at MW2 zone office at Parramatta. He worked there up until and including Friday 12 October 2018 but has been off work on various forms of leave since that time. The 2019 victimisation proceedings 1. The Application made pursuant to s 213 of the Act was filed on 20 June 2019. 2. Part "B" of the Application set out the "Particulars of Victimisation" as follows: 1. Most recently, the Respondent has purported to prevent the Applicant taking action to remedy the matters herein, by seeking to have him sign a deed of release releasing them from all claims. The Applicant apprehends that the industrial union of which he is a member has released the Respondent on its own behalf, without the agreement of the Applicant concerning his own rights and entitlements. The Applicant may only surmise this, since neither the Respondent, nor the said union will disclose to him the content of discussions concerning him. He was excluded from personal attendance at relevant meetings, and proceedings before this Commission. 2. The Applicant has therefore been rendered a victim by the function of his membership of an industrial organisation, in breach of Section 210 (1) (a) (d) and (e). But for his membership of the said union, his exercise of entitlements pursuant to the Act, and his claim of a benefit under the legislation, this outcome would not have been purportedly imposed on him. 3. The Applicant has been directed to vacate his place of employment, and instead report to an office in Parramatta, where he will be engaged on tasks not appropriate to his training, seniority, experience, and merit. 4. The Applicant has been denied allowances he previously attracted, thereby reducing his income by about $40,000 per annum. That consists of loss of access to higher duties allowance, being about $5,000 per annum, loss of car usage of $15,000. In addition, the Applicant is barred from working overtime, which reduces his income by about a further $17,000 - $30,000. 5. The Applicant remains under threat of dismissal, being a fundamental element of his victimisation. Background 6. The Applicant joined the service of the Respondent in or about April 1994. He holds the substantive rank of Inspector, with responsibility for 14 Stations. 7. The Applicant was appointed to that rank in 2012. 8. The Applicant enjoyed the confidence of the Respondent. This was reflected in the fact that he was appointed an Acting Superintendent about 10 times, the most recent being in about June 2016. 9. As a consequence, he was obliged to deal for the first time with Mr Sean Falconer. As acting Superintendent, the Applicant had responsibility for all staff in the zone, including training staff. 10. Mr Falconer is the regional training officer, for Metro West 3, based at Katoomba, the district in which the Applicant is engaged. He has been employed by the Respondent since about 2000. 11. Although Mr Falconer "reported to" the training arm of the Respondent in Alexandria at the relevant time, his duties were principally in the Applicant's area of administration in Metro West 3, centred on Katoomba. 12. In stature, Mr Falconer is approximately 1.75 metres tall, and weighs about 140 kilograms. He works from home. This is an arrangement reached with officers of the Respondent in the past, despite the absence of any award or other provision permitting this. No other training officers are permitted to work from home. He attends to training schedules and other commitments according to priorities and timetabling determined by him. He does this with the ongoing permission of the Respondent. He specifically refuses to perform work such as prepare "lesson plans", being the planning of training. 13. This arrangement, and the demeanour of Mr Falconer had led him into conflict with supervisors to whom he reported prior to the Applicant. 14. Mr Falconer, as in this case, had obtained preferential treatment from the Respondent in conflicts with supervisors, to the detriment of those supervisors. 15. Station Officer John Collins was the Team leader, Regional Training, and Mr Falconers' supervisor. Mr Falconer refused to follow his directions, and Mr Collins was not supported by the Respondent. He went on stress leave and retired. We refer to the Statement of the now retired Mr Collins, which will be tendered in these proceedings. 16. Superintendent Lindsay West, Zone Commander of Metro West 3 had the dealings with Mr Falconer that are referred to in his statement that will be tendered in these proceedings. He refused to deal with Mr Falconer, other than on essential matters. This was ultimately permitted by the Respondent. We refer to the statement of Mr West to detail the characteristics of the conduct of Mr Falconer and the response of the Respondent. 17. We also refer to the statement from Inspector Andrew Ticehurst confirming the behaviours of Mr Falconer and the lack of support from the Respondent. 18. From about October 2016, the Applicant sought to have Mr Falconer provide a program of training. He sought lesson plans, and a program where he would conduct training which would integrate volunteer, retained, and permanent fire fighters in training sessions. Mr Falconer point blank refused to provide the training schedule that the Applicant requested. 19. The Applicant convened a meeting with two Superintendents (Messrs Buckley and Mathias), Station Officer Mr Kevin Tyldsley, HR manager, Ms Jaspreet Gill and Mr Falconer. The meeting occurred on or about 11 November 2016. 20. On or around the day before the meeting, Mr Mathias instructed the Applicant not to raise the safety concerns and major governance issues to Mr Falconer at the upcoming meeting. Mr Mathias said words to the effect, "we just want to try to re-engage him". This specifically included ignoring: a. a lack of qualified drivers, which threatened the Respondent's response capability this would not be put to Mr Falconer. The Applicant again informed Mr Mathias the Service could not at that time guarantee timely emergency response in that zone, due to inadequate training by Mr Falconer (see Section 210 (1) (j); and b. the fact that Mr Falconer had taken several days of "leave" including declared "sick leave" yet Mr Falconer's leave balances had not been deducted. He had failed to notify his manager of the "leave". 21. At this meeting, though, it was put to Mr Falconer that he was not performing adequately, he was working in isolation at home, his record keeping was incomplete and his training delivery was inconsistent with the Respondent's requirements. It was also put to him that he was required to prove attendance at fire stations by signing the occurrence book correctly at each place he attended. Mr Falconer undertook to do this but never complied, and this was not policed by the Respondent. 22. Other than for the issues he "agreed" to, Mr Falconer declined to attend to the training issues, "until Lindsay West comes back". We refer in this connection, to the statement of Mr West tendered with this application, and to the minutes of said meeting. Mr West, never "came back", and his reason is in his statement. 23. The only "outcome" from this meeting (there was no improvement in the training performance of Mr Falconer, and no monitoring of his behaviours as required by the Respondent) arose from Mr Falconer raising a spurious claim against the Applicant. The Applicant had asked Mr Falconer in a courteous email on or around a month earlier; "How is your knee?" (Mr Falconer had previously claimed not to be able to attend to his duties because of a sore knee). It is understood that he had had a knee reconstruction. 24. The complaint about bullying also arose from the Applicant requiring Mr Falconer to reasonably account for his time, and to meet reasonable standards of work. In breach of Section 210 (1) (j), therefore, the response of the Respondent to the Applicant raising serious health and safety issues, was merely to "address" a nonsense complaint about him asking "how is your knee" and "upholding" that complaint. 25. That spurious complaint was upheld by the Respondent, notwithstanding the criteria to determine conduct which constitutes "bullying" - none of which were met in that case. Requiring "reasonable accounting for time" and "maintaining non-falsified records" and "ensuring public safety" is reasonable management action. 26. There were recorded incidents where the absence of trained drivers and other trained staff due to Mr Falconer not attending to his duties prejudiced public safety. This is known to the Respondent. In one case, there was a large fire at Katoomba RSL (incident number 040443). The RSL was burned down. A contributing factor was the delays caused by an absence of trained personnel on the differing types of fire trucks resulting in the need to send fire trucks from further away. Adequate training of personnel would have remedied that. That fire occurred on 24 February 2017. The absence of trained staff created the need to send a qualified emergency truck driver (by the Applicant's work vehicle) from Katoomba to Springwood since there was no qualified driver at Springwood, to bring the fire truck back to the fire. Had there been a qualified driver, the essential fire truck would have been in attendance at the fire about 45 minutes sooner. This issue was fully notified to the Respondent, and has not been disputed. In connection to this issue please refer to Lindsay West and Inspector Andrew Ticehurst's statements. 27. It is not a minor issue to fail to train drivers of fire trucks. The trucks may not be driven on a public street, with or without a siren sounding, other than by a duly licensed driver. The failure to ensure this essential standard was known to the Respondent, and not addressed, but the Applicant was sanctioned for addressing it. 28. The Applicant then complained to the Respondent (being in this case represented by Mr Buckley, the Superintendent in charge of education and training) that the behaviour of Mr Falconer was a threat to safety or health (see Section 210 (1) (j). 29. Mr Falconer then claimed to be on sick leave. 30. This led the Applicant to make a complaint as to the unfair and health­ endangering circumstances pertaining to this inexplicable endorsement of Mr Falconer's conduct. See Section 210 (1) (j) 31. The Applicant pointed out to Mr Mathias, in February 2017 that this circumstance was undermining his health and safety. Mr Mathias acknowledged this by later emails. The Applicant also raised this complaint with Mr Tchappat, of the Respondent. 32. The Applicant was ordered to continue to deal with Mr Falconer - but then not deal with Mr Falconer. This utterly conflicting instruction was repeated by email and other means multiple times during 2016, 2017 and 2018. 33. For example, in about February 2018, conflicting instructions were given, one from one supervisor directing communication only on work related matters, and the other stating that sending work related emails to Mr Falconer "exacerbated the situation". This was a reference to the spurious claim of "bullying" where the Applicant had exercised reasonable management action towards this Mr Falconer. 34. The Professional Standards unit of the Respondent then deemed that the Applicant was in some way "guilty" of harassing Mr Falconer by pointing out the inherent danger of his negligence, including the alarming reason for exacerbation of fires (we have noted above, the Katoomba RSL fire). The fact that he had done so through proper channels was disregarded, as was the content of his warning. See Section 210 (1) (j). 35. This then made the performance of the Applicant's role unreasonably difficult. He was not allowed to deal with Mr Falconer, yet Mr Falconer was the training officer in the zone in which the Applicant was an Inspector, and lack of training was a serious problem in that district, with serious consequences for public safety. 36. Further and in addition to other conflicting instructions, the Applicant was told by letter in April 2017 to not contact Mr Falconer under any circumstances. This was varied by Mr Mathias in the meeting in which the Applicant was given that letter, to in fact continue interaction but adhere to professional conduct and to communicate with him on an as needed basis. That was confirmed more than once by emails from Mr Mathias. Mr Mathias also confirmed this several months later, during one of the many "inquiries". 37. Acting on that instruction, the Applicant sent an email about a month later (but only in reply to Mr Mathias) about the matter of training during the absence of Mr Falconer on leave. "Are there any issues?", Mr Mathias had asked. The Applicant responded, identifying the issue of absence of motor drivers. Mr Falconer was apparently one of the many persons on the distribution list, and thus received the "reply" to Mr Mathias by the Applicant. In any case the Applicant had been permitted to reply in this manner given Mr Mathias' instruction. (As confirmed by Mr Mathias). 38. Mr Falconer forwarded that email to Mr Tyldsley, who sent it to Ms Arye at Professional Standards. 39. About a week later the Applicant attended zone training, as he was required to do, as Mr Ticehurst, his fellow Zone inspector was ill. He attended the session without knowing Mr Falconer would be present. He had expected Mr Falconer to not be present, in accordance with his usual practice (of not being present). Unexpectedly, he was present. The Applicant did not speak to Mr Falconer. He said to the group, "Hi guys, good luck today. Is Conor coming?" This was a reference to a usual assistant at such sessions. Fire Fighter Ms Maxwell, being the only one to reply, said, "Oh, he's running late." The Applicant did not speak to Mr Falconer. 40. Mr Falconer then made a false claim that the Applicant "Had spoken to him". He did not allege lack of courtesy, merely complained about being "spoken to" by the Applicant. 41. The Applicant was "investigated". He was "found guilty" of "speaking to Mr Falconer", even though he had not, and even though he had been instructed to in any case, by Mr Mathias (as confirmed by Mr Mathias). 42. There was no apparent concern within the Respondent that health and public safety was being undermined by lack of attention to training obligations in Metro West 3. 43. This finding of "guilty" (of "speaking to Mr Falconer"), actually occurred 33 weeks later, in February 2018. During that 33 weeks, the Applicant was required to work from the Springwood Public Library (with the full knowledge of Mr Mathias, Mr Ticehurst, Ms Smith and Ms Pert and Mr Tchappat of Health and Safety). 44. Whenever Mr Mathias telephoned the Applicant in the library, the Applicant was obliged to "whisper" until he had moved out into an open area, due to the "silence rule" in the library. 45. This occupation of the public library was due to the "need" imposed by the Respondent, to "make sure" he did not come across Mr Falconer. 46. The absurdity of this arrangement has not as yet occurred to the Respondent, despite it being regularly called out by the Applicant during that 33 week period. 47. Sometimes the Applicant spent a full day in the library, but usually about 3 to 4 hours, with the rest of the time spent going from station to station as required - all the time "ensuring" (as instructed) that he did not let Mr Falconer "see him". Had Mr Falconer "seen him" it can be reasonably assumed that an additional "finding" would have been made against him with a possible penalty of termination. 48. During the 33 week "investigation" the Respondent only interviewed two people, besides the Applicant, and by phone – by way of conducting this "investigation". These were Ms Maxwell from the training session in the park, and one other person from the training session. Each gave conflicting accounts, due, a reasonable person would assume, to the unimportance each placed on the event, and therefore the poor recollection that both had. Mr Falconer was not interviewed. The Applicant was not interviewed – except that he was asked about this at a verbal interview in August 2017 and provides the same version of events herein. 49. After the "finding" was made in February 2018, but not before it, the Applicant was given the chance to present his position. In other words, the "case" was permitted to be put, only after the "verdict". 50. The Applicant then inadvertently sent an obviously incorrect document for his appeal. The Respondent did not tell the Applicant of this. He discovered after the event, that he had sent the wrong document. The Respondent refused to permit him to correct the error. 51. Another 33 weeks passed, after the Applicant being "found guilty" despite his error on appeal. The time was spent by the Respondent debating the meaning of the word "remedial". In that period, the Applicant remained working from the library, and conducting telephone calls on "whisper" with Mr Mathias. The Respondent's proposed "remedial action" entailed significant loss of income to the Applicant. 52. Throughout this period, a lack of qualified drivers remained a safety issue. We refer to the statements of Lindsay West and Inspector Andrew Ticehurst. 53. A further incident creating danger to the public due to the absence of adequate training occurred on 15 June 2018. An emergency call was received by the Respondent to "Assist Public" (incident number 107047). The incident was in or around Wentworth Falls. Wentworth Falls Station were unable to attend the emergency as they did not have a qualified driver. The call was redirected to Lawson who also failed to obtain a qualified driver. Leura were then allocated the emergency incident after a significant delay. 54. The Applicant was obliged to record his "near misses" where he was "almost seen" by Mr Falconer. On one occasion, during his regular rounds to Springwood Station (as reported to Mr McNeil) the Applicant saw Mr Falconer parked across the street. In accordance with instruction, he went out the back door, and "ducked" around a fire engine so that he could leave the premises without being seen by Mr Falconer. 55. The Applicant complained about this absurdity to Mr McNeil, who merely referred him to the "employee assistance program". Mr McNeil did not see the absurdity. 56. The Respondent ordered the Applicant to transfer to Parramatta. This led to proceedings before this Commission. 57. The Applicant was not included in any conferences before the Commission. 58. The Applicant went to Parramatta for four days in October 2018. 59. The Applicant has been absent on sick leave or annual leave ever since. 60. In about September 2018, the Applicant was presented with a purported "deed of release" releasing the Respondent from all responsibility in this matter. He refused to sign it. 61. Throughout the proceedings before the Commission the Applicant was sanctioned by the Respondent for "three times" refusing to attend at Parramatta. The Respondent threatened to suspend him without pay unless he did. The Applicant was thus victimised for having exercised functions under this Act, and participating in proceedings before this Commission. 62. Had the Applicant not complained about the threat to public and workplace safety arising from the absence of correct training in Metro West 3, and the threat to his own health and safety arising from this conduct, he would not be in the predicament at the hands of the Respondent, he now is. 1. Attached to the Application were written statements by John Collins, former Team Leader Retained Training, Lindsay Ticehurst, former Superintendent and Zone Commander, and Andrew Ticehurst, current Inspector, all of which were critical of various aspects of Mr Falconer' work performance. 2. The Application was supported by an affidavit sworn by the applicant and filed in the Commission on 30 August 2019. That affidavit contains the following: 1. I have been employed by Fire & Rescue New South Wales (FRNSW) since 1994. 2. I have held the rank of Inspector at FRNSW since 2012. 3. I have been attached to Metropolitan West 3 (MW3) as an Inspector since August 2015. 4. As an Inspector attached to MW3, my primary responsibility is to ensure MW3's operational capability to respond to all emergency incidents in a timely manner. 5. I make this affidavit from my review of relevant documentation referred to herein or on the basis of communications that I have had with the persons referred to herein. Where I am informed of information by another person I state who that person is and confirm that I believe such information is true and correct. Emergency Incidents 6. Within FRNSW, all emergency incidents are referred to as 'fire calls', regardless of the type of emergency. 7. Fire calls require a response of a fire appliance under lights and sirens. 8. A 'delayed response' occurs when the time from a fire station receiving a 000 call until the time that the fire appliance leaves the station on route to the emergency incident is greater than 7 minutes. Metropolitan West 3 9. MW3 includes the Blue Mountains, which is the most bushfire prone area in the Respondent's ambit. In 2013, Winmalee within the Blue Mountains lost 182 houses due to a fire front that came through a residential area in approximately 12 minutes. This demonstrates the importance of a timely response. Fire Appliance Training 10. Firefighters are not permitted to drive a fire appliance to a fire call unless they have been trained, assessed and deemed competent to drive and operate a particular emergency vehicle. a. Once trained and assessed as competent on an urban on-road fire appliance, a firefighter is deemed a qualified 'motor driver'. b. Once trained and assessed as competent on an off-road fire appliance, a firefighter is deemed a qualified 'tanker driver'. 11. Within MW3, the responsibility for training and assessment of both motor and tanker drivers rests with the Regional Training Officer. 12. Sean Falconer, has held the position of Regional Training Officer within MW3 for in or around 10 years. 13. Lindsey West was MW3's Zone Commander for the period of or around 2012 to August 2017. Zone Commander Lindsey West's standing instruction to Sean Falconer was to, "train as many firefighters as drivers both pump and tanker" (which reflects Fire and Rescue's standing instruction), as evidenced in his Statement dated 13 June 2019… I say that, based on my knowledge, the attached documents, produced on subpoena, show that Sean Falconer has not complied with this basic duty. It is this fact that I called to the attention of the Respondent which culminated in me being held to have "bullied" Mr Falconer, and my current status of being removed from my position. I identify the attached documents as Subpoenaed documents 1 to 6. 1. The "Subpoenaed documents 1 to 6" are documents produced by the respondent pursuant to a Summons to Produce which, among other things, purport to demonstrate the frequency and time taken for "delayed responses" and "non-responses" that occurred in MW3 during the period 1 October 2015 to 1 October 2017, as well as the number of trained motor and tanker drivers in the region during the same period. The applicant's affidavit continued as follows: Firefighter health and safety 14. All emergency incidents are a firefighter's 'workplace'. As such, all aspects of work health and safety apply on route to the fire call and at the scene. 15. Firefighters and Supervisors must identify work health and safety issues and mitigate and/or remove any identified risks to ensure firefighter safety. 16. Having timely support for on scene firefighters is critical for their safety. This is achieved by ensuring there is a timely response of additional firefighters in fire appliances. Public health and safety 17. The Respondent attests on their website to being a service that, "provides high quality reliable and rapid response to safeguard people and property in NSW. We serve the community of NSW by: a. Responding quickly to calls of fire (24 hours a day, 7 days a week) b. Protecting property within NSW and saving properties from structural fire". 18. This is contrary to the Respondent's response to concerns raised by myself and my MW3 management colleagues, as evidenced below, that the lack of qualified motor and tanker drivers within the zone, threaten the zone's response capability, unnecessarily threatening the public's health, safety, property and the environment. 19. Raising my concerns regarding the lack of qualified motor and tanker drivers threatening the zone's response capability and the public's health, safety, property and the environment meant that I was subject to complaints from Sean Falconer, which were accepted by the Respondent as being not reasonable management action. 20. I remain concerned that the Respondent's failure to address the lack of trained motor and tanker drivers in MW3 may result in the injury or death of a member of the public. Concerns raised to the Respondent 21. On or around August 2016, I raised my concerns with the Respondent regarding: a. The lack of trained motor and tanker drivers within MW3 threatening the zone's response capability, as a direct result of Sean Falconer's failure to attend to his responsibilities, and the unnecessary risk to firefighter and public safety. I only raised the matter with management after Sean Falconer specifically refused to increase the number of persons he was training. In about August 2016, I said to him words to the effect, "Sean, this is a crisis. The trucks are not turning out. Something's going to go very wrong if we don't do something. We need you to train more drivers". He said to me, "They know where I am if they want training. It's not my problem." I said, "Well, can we reserve two days per month to train drivers?" He said, "Nah, I'm not doing that." b. The lack of training being undertaken in MW3 to qualify further motor and tanker drivers given the threat to the zone's response capability, and the unnecessary risk to firefighter and public safety. i. Norman Buckley, Superintendent, Education and Training, deemed my concerns valid. This is supported in an email to Superintendent Norman Buckley on or around February 2017… which states, "In the last eight weeks we have had approximately three occasions where a MW3 station has not been able to respond to a fire call due to a lack of motor drivers". I followed this email up by telephone with him, in which he said, words to the effect, "Yes, this is a serious concern." c. The training delivered by Sean Falconer, Regional Training Officer within MW3, was not in accordance with the Respondent's requirements. This posed a significant risk to workplace health and safety. This is evidenced in an email from Sean Falconer on or around 9 January 2017… where in reference to his training delivery he states, "the appliance training unit no longer supports this style of training and assessment". My understanding of this, which has never been contradicted, is that Mr Falconer ignored the protocols set down by the Respondent, and continues to be permitted to. 22. Raising my concerns regarding the lack of qualified motor and tanker drivers threatening the zone's response capability, and the health and safety of firefighters, meant that I was subject to complaints from Sean Falconer, which were accepted, and arising from which I am in my current predicament. 23. I remain concerned that the Respondent's failure to address the lack of trained motor and tanker drivers in MW3 may results in the injury or death of a firefighter. I can say that it has already contributed to the destruction of property – for example, the Katoomba RSL fire of 2017, where there was a significant delay in response, due to the absence of trained drivers. The premises were destroyed. 1. The applicant criticised the training, or lack thereof, of motor and tanker drivers provided by Mr Falconer. The applicant's affidavit then continued as follows: Delayed or non-responses by MW3 to emergency incidents 25. Inadequate training meant that a lack of qualified motor and tanker drivers compromised the Respondents response capability in MW3. This resulted in delayed or non-responses by the Respondent in MW3 to emergency incidents. 26. I subpoenaed information from the Respondent with respect to delayed responses by MW3 to emergency incidents greater than 12 minutes. I note that the Respondent's definition of 'delayed response' is only 7 minutes, but I intentionally sought only "conservative" figures: a. For the two years from on or around October 2015 to October 2017, there were 489 delayed responses (that is, longer than 12 minutes, as opposed to the 7 minutes that actually defines a "delayed response) identified in MW3, as evidenced by the report by the Respondent,... This means that the time from when the fire station received the 000 call until the time that the fire appliance left the station on route to the emergency incident was in excess of 12 minutes. b. For the two years from on or around October 2015 to October 2017, there was 74 non-responses identified in MW3, as evidenced by the report produced by the Respondent,... c. The Respondent's report does not capture all delayed or non-responses for MW3 to emergency incidents over the two years from on or around October 2015 to October 2017. I am aware of further delayed or non-responses by MW3 to emergency incidents over the two years from on or around October 2015 to October 2017. 27. Inadequate training resulting in a lack of qualified motor and tanker drivers and a compromised response capability in MW3 is further evidenced by the following Statements by MW3 management: a. A Statement from Andrew Ticehurst, Inspector attached to MW3 for the period on or around 2017 to 2019,… Inspector Ticehurst states that a lack of qualified motor drivers could "have an impact on that stations ability to respond to emergency calls". b. A Statement from Peter Nugent, Inspector attached to MW3 for the period on or around October 2013 to November 2016, dated 18 August 2019,… Inspector Nugent states, "during this time there were instances ....where some stations had a delayed response and were unable to respond due to not having trained pumper or tanker drivers". c. A Statement from Darrell Howarth, Captain attached to Leura for the period on or around April 2012 to present, dated 3 July 2019,... Captain Howarth states, "A lack of motor drivers has often lead to delayed responses to emergency fire calls. A lack of motor drivers meant Leura was unable to attend major emergencies such as bushfire strike teams, major storm and tempest emergencies". d. A Statement from James Rowland, Captain attached to Richmond for the period on or around 2014 to date, dated 5 July 2019,... Captain Rowland states, "At times responses were delayed due to firefighters with over 5 years employment not having motor qualifications". e. A Statement from Mark Mallitt, Captain attached to Glenbrook for the period on or around 2006 to 2019, dated 10 July 2019,… Captain Mallitt states, "There were some occasions when the Fire Station experienced significant delays in response to emergencies due to a lack of qualified Pumper driver/operators and Tanker drivers". f. A Statement from Matthew Jeffree, Captain attached to Portland for the period on or around 2012 to 2019,… Captain Jeffree states, "There were a number of occasions when my station had significant delays in response to emergencies or were unable to respond to emergencies due to a lack of qualified drivers". 28. From my knowledge, and my reading of the Subpoenaed Documents 1 to 6, I say that insufficient qualified motor and tanker drivers has compromised FRNSW's ability to respond to emergency incidents in MW3 in a timely manner or in some circumstances, at all. This has posed a significant work health and safety issue for firefighters and a significant risk to the public's health and safety. ………………………… Victimisation 30. Since lodging the Relief from Victimisation claim on 24 June 2019, the Respondent has: a. Threatened via email not to allow me to use my annual leave after exhausting all of my sick leave. b. Failed to approve the renewal of the lease for the house I live in with my partner and two children, which has now expired. As per Clause 30 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2016. 31. I refer to the Application for Relief from Victimisation document filed in these proceedings. That Document was filed on my instructions. For the avoidance of doubt, I confirm that all the assertions of fact in that Application document are true and correct. Respondent's Notice of Motion 1. In response to the Application, Commissioner Webster convened a compulsory conference on 26 June 2019 in an attempt to resolve the matter in conciliation. That attempt was unsuccessful. Commissioner Webster made certain directions, including a direction that the respondent, FRNSW, file and serve a Notice of Motion in respect of the jurisdictional objections it intended to make with respect to the proceedings by no later than close of business on 24 July 2019. 2. On 24 July 2019, the respondent filed in the Commission a Notice of Motion ("the Motion") in the following terms: A. Orders sought The Respondent will on A DATE TO BE FIXED move the Industrial Relations Commission for: 1. Orders that the Application filed by the Applicant on the 20 June 2019 be dismissed. 2. The Applicant to pay the defendants costs of the motion. 3. Such further or other orders as the Commission deems appropriate. B. Grounds and reasons: 1. The Application was filed out of time - Section 213(3) of the Industrial Relations Act 1996 (the Act) requires that an application for an order under S.213 must be made within 21 days after the contravention concerned. 2. The Application further fails for want of jurisdiction under S97(1) of the Act excluding the conduct investigation and outcomes to be reviewed by the Commission 3. The Applicant is estopped from bringing this action by virtue of a confidential Deed of Agreement entered into on behalf of the Applicant on 10 October 2018; and further by his conduct since 10 October 2018 receiving benefits conferred under the Deed; and by virtue of the rule in Henderson v Henderson (1843) 67 ER 313. 4. The application does not identify any act of victimisation as set out in S210(1) of the Act or any causal connection between any alleged action of victimisation by or on behalf of FRNSW as employer towards the Applicant. 1. The respondent's Motion was heard before me on 25 and 26 February 2020. The hearing focussed primarily on paragraphs 1 and 3 of the grounds and reasons in support of the orders sought in the respondent's Motion. This decision deals with those aspects of the Motion. 2. The respondent called as witnesses in its case the following FRNSW employees: Graeme Holland, Senior Industrial Relations Officer, Employee Relations Directorate, Stephen Parkins, Acting Manager Operational Staffing, Robyn Millar, Safety Advisor, Health and Safety Branch, Theresa Smith, PSU, and Louise Clarke, Acting Executive Director, People and Culture. Much of the evidence of these witnesses travelled beyond the issues raised by the respondent's Motion and I do not intend to canvass all of it in this decision. Paragraph 1 – Application filed out of time Case for the respondent 1. A written outline of submissions filed by the respondent on 24 July 2019 contained the following: Application out of time. 23. The conduct which has allegedly resulted in the contravention of Part 1 of Chapter 5 of the Industrial Relations Act 1996 (the Act) was the issuing of the revised letter confirming the finding of misconduct and setting the parameters of the remedial action. This letter was dated 7 May 2018 and handed to the Applicant on 11 May 2018… 24. Section 213(3) of the Act requires any application for an order for enforcement under the section to be commenced within 21 days of the alleged contravention. 25. This application was commenced on 20 June 2019. It is therefore out of time, whether the date of contravention of S.210 is taken to have occurred on 7 May 2018, 11 May 2018, or even as late as 10 October 2018. 26. No other relevant date 21 days before 20 June 2019; to be clear not earlier than 30 May 2019; has been identified by the Applicant or otherwise connected to any real or perceived conduct by FRNSW or otherwise articulated in any clear or concise manner within the Application filed on 20 June 2019. It is an abuse of process for the Applicant to leave the Respondent without a clear understanding of the alleged victimisation; effectively the Respondent is 'boxing at shadows'. 27. The prohibition against commencement of S.213 actions out of time is clear. Section 213(4) of the Act provides that, in certain circumstances, "the Commission may accept an application that is out of time if the Commission considers there is sufficient reason to do so." (emphasis added). There is a positive onus on the Applicant to satisfy the Commission that there is sufficient reason to extend time. In this case there has been no valid evidence submitted to justify an extension of time to matters that occurred in good faith on the part of FRNSW more than 8 months before this Application was filed. ………………………………. No explanation for the delay. 29. It is the Respondent's respectful submission that there are no reasons, valid or otherwise, offered by the Applicant in order to explain the Applicant's delay. 30. The letter confirming the remedial action was served on the Applicant on 11 May 2018... The dispute notified by the FBEU related only to the notion of 'temporary transfer' and the loss of rental allowance. No objection was taken to the fact of remedial action per se. 31. Nothing was done regarding the purported victimisation until 20 June 2019 when the Application was filed. 1. A further written outline of submissions filed by the respondent on 27 September 2019 contained the following: Out of time 5) The Applicant's Affidavit does not disclose why his application was filed out of time. Section 213(3) of the Industrial Relations Act 1996 (the Act) requires that an application for an order under s.213 must be made within 21 days after the contravention concerned 6) The Applicant's Affidavit, lacking the benefit of a covering submission, holds a paucity of material explaining the Applicant's failure to bring this claim within the 21 days provided for in Part 1 of Chapter 5 of the Act. The Respondent has been left to draw its own distinctions and conclusions as to the Applicant's reasons for failing to commence his application within time. 7) The dates identified by the Applicant as being the date of contravention under s.210 of the Act occurred between 7 May 2018 and 10 October 2018. Therefore, based on the Applicant's evidence the last date upon which any application under s.213(3) of the Act could be made is 31 October 2018. This application was commenced on 20 June 2019. It is therefore out of time. 8) The conduct which has allegedly resulted in the contravention of Part 1 of Chapter 5 of the Act was the issuing of the revised letter confirming the finding of misconduct and setting the parameters of the remedial action. This letter is dated 7 May 2018 and was handed to the Applicant on 11 May 2018... 9) It is entirely improper for the Applicant to attempt to draw upon matters allegedly occurring after the application was filed in the Industrial Relations Commission of NSW (IRC) (see paragraph 30 of the Applicant's Affidavit). 10) It is the Respondent's respectful submission that there are still no valid or plausible reasons offered by the Applicant to explain the Applicant's delay. 11) The Respondent views the material in the Applicant's Affidavit as having no persuasive value in mitigating the extensive delay in bringing a claim under s.210 of the Act. The Applicant has failed to explain his delay or otherwise why the IRC should be moved to order enforcement options under s.213 of the Act. 12) The further claim of victimisation raised in paragraph 30 of the Applicant's Affidavit after the application was filed in this matter is refuted by the Respondent. Matters occurring after the proceedings were commenced cannot be relied upon to bring the Application within the jurisdictional timeframes allowed by the Act… 13) The Respondent contends that the Applicant carries the positive onus of producing evidence to establish a justifiable reason for the delay in order to obtain the protection provided by s.213 of the Act. If the Applicant were seeking to rely on representative error, the Applicant must produce evidence to support such a claim. 14) In Jannell Storr v Industrial Relations Secretary on behalf of the Secretary, Department of Justice (Corrective Services NSW) [2018] NSWIRComm 1049, Commissioner Sloan considered the principles involved in determining whether to allow an out of time victimisation claim and stated at paragraphs 21 -23 that: "An applicant seeking to invokes 213(4) bears the onus of demonstrating that the justice of the case requires the Commission to exercise its discretion in his or her favour: Lucic v Nolan (1982) 45 ALR 411 a/416. As stated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9-10: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out: "The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served." … In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a Justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." [Emphasis added, footnotes omitted] 15) Commissioner Sloan in Storr went on to consider Public Service Association of NSW (olb Morawsky) v Department of Justice [2017] NSWIRComm 1059 where Newall C stated as follows: [13] It is perfectly clear that the prima facie position is that an application brought out of time is excluded and therefore that an applicant bears the positive burden of demonstrating that the justice of the case requires an extension. If an applicant cannot demonstrate that the justice of the case requires an extension, then the prima facie position will prevail, that is the application remains excluded, as the Commission recently held in Tolley v Secretary of New South Wales Ministry of Health [2016} NSW!RComm 1043. As noted above, s 213(4) confers a discretion on the Commission to accept an application out of time, but it is a guided discretion. In deciding whether Ms Storr has discharged the onus on her to prove that sufficient reason exists to accept the Application out of time, I must have regard in particular to the matters set out ins 213(4)(a), (b) and (c). However, I am not limited to those matters. In particular, it is relevant to consider whether an applicant has an arguable case and the applicant's prospects of success: Hurrell v Queensland Cotton Corporation Limited (2002) 125 IR 145 at 150. 16) Commissioner Sloan dismissed Ms. Storr's application. Similarly, the Respondent asserts the Applicant's claim in this matter should be similarly dismissed. Case for the applicant 1. The following submissions were put on behalf the applicant: Not out of time. 4. This matter arises from a complaint made by Inspector Buchanan as to the inexcusable failure to attend to his duties, by a training officer named Falconer. That was clearly a complaint contemplated by Section 210 (1) (j). There are extraordinary health and safety consequences for the employees of the Respondent, and for the general public, for insufficient fire appliances to be available in an emergency. 5. We refer to the evidence filed in this matter, which includes corroborating statements of other relevant persons who have had firsthand experience as to the lack of proper approach to his duties by this Mr Falconer. See the Affidavit filed by the Applicant, and its annexed corroborating statements. 6. We also refer to documents produced on Summons which also confirm the lack of adherence to minimum safety standards by Mr Falconer. See the affidavit filed by the Applicant. 7. The complaints about Mr Falconer, by the Applicant, commenced in or about August 2016. 8. The complaint about Mr Falconer was "……….. about a workplace matter that the person considers is not safe or a risk to health..........." (see Section 210 (1) (j) of the Act). 9. The evidence discloses that almost from the beginning (that is, August 2016), and directly arising from his complaint, Mr Buchanan became subject to inexplicable retaliatory action for having raised the documented and corroborated safety concerns concerning Mr Falconer. 10. The treatment of Inspector Buchanan arises from his exposure of a serious threat to the health and safety of fellow employees, and of the community as a whole. He identified actual fires that were exacerbated directly arising from the unavailability of qualified persons, due to no other reason than absence of training. 11. It should be noted here, that it is no trivial or "procedural" matter to have insufficient trained persons, in this context. The training concerned, is for the driving of a fitted out vehicle of about 10tonnes, loaded, at speed on a public road, with siren sounding and light flashing, lawfully disregarding traffic lights, and lawfully driving, say, on the wrong side of the road. Training persons to do this, is a most significant responsibility, the absence of which constitutes profound negligence. 12. The negligence is tolerated, and the person identifying it is treated adversely in the way disclosed in the evidence. 13. Rather than Mr Falconer being directed to attend to the clearly documented failure by him to meet minimum standards (the subpoenaed documents show that his shortcomings have been permitted to continue), it has been the Applicant who has been "punished" in this matter. His treatment in ongoing, from before and after the day he commenced these proceedings. It prevails today. 14. Apart from the impact on him, Mr Buchanan is alarmed that the Blue Mountains of NSW, which is the precinct concerned, is left with insufficient qualified drivers of fire appliances. 15. The treatment of Mr Buchanan has not been only one "incident". The conduct against him has not ceased, and no indication has been made as to when it will end. For example, Mr Buchanan, was ordered at one stage to spend his days working from the public library, since Fire and Rescue deemed that him "being seen" by Mr Falconer would somehow be traumatising for Mr Falconer. Such "trauma" would apparently "distract" Mr Falconer from his accepted practice of not meeting minimum safety standards. 16. Mr Buchanan is, at the time of this submission (and was in July), under orders to present himself to the Parramatta office of Fire and Rescue so as to conduct unspecified "special duties" so that he can "rehabilitate himself" from his behaviour. That "behaviour was a complaint that is precisely provided for in Section 210(1) (j). 17. In this case, it is not a correct statutory interpretation to regard Section 213 (3) in the way it has been, in the submissions to which we reply: (3) An application for an order under this section must be made within 21 days after the contravention concerned. 18. There is, usually, not some "specific event" that is, or can be, "victimisation". It is, rather, a state of affairs, a pattern of conduct. 19. Section 213 (3) "has work to do" perhaps, to prevent commencement of proceedings with respect to matters that have ended. The "contravention", though, is not something that, usually - according to reasonable expectation - happens once, lasts, for, say an hour and then ends. Such a single event leading to "victimisation", may happen of course, in some set of circumstances upon which we do not need to speculate, but definitely has not, in this case. 20. In any case, the treatment attested to, pertains today (and did in July 2019 when these proceedings commenced). It has not ended, but it should have. Mr Buchanan is set to suffer ongoing financial damage which must be stopped, and that which he has suffered must be remedied. 21. It would be a most unwieldy interpretation of the Act (which would lead us into error), to regard victimisation as a single event, based on these facts. It would contradict the authority to be got from Graham Davis v Amalgamated Television Services Pty Ltd (IRC 7028 of 1997) 22 June 1998: At page 65: ".............. His Honour was in error in failing to consider the matter in the context of all acts and omissions capable of constituting victimisation in the statutory sense…………." The Commission in this matter, should consider this matter in the context of all the acts and omissions to determine whether they constitute victimisation when taken as a pattern, in the statutory sense. 22. In defining "victimise", in Davis, at page 36 last paragraph thereof, the Commission does not restrict itself to an event, but considers victimisation (as should we) as part of a scheme of behaviour: "............. in our opinion, the actions and/or omissions attributed to the respondent which are contained in par 6 of the particulars of claim, or any of them with the possible exception of (h), are, .............quite capable in law of constituting victimisation…………" So, it is not just one event, it is a set of events, occurring over time. All must be considered. If all the issues had ended, and could no longer be asserted, then we would have had 21 days from that last event, to commence this matter. They have not ended, though. The pattern continues. They existed in July 2019, and exist now. 23. How is the experience of Mr Buchanan, "victimisation"? Page 34 of Davis, is authority: "In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". ................... 24. Mr Buchanan has clearly been victimised. He would have not been victimised of course, if his conduct in complaining about the serious community danger that he and others uncovered, was unjustified. The sanctioning of him between 2016 and today would not be, in that non-existent case, victimisation, but lawful discipline. 25. That is, in such a hypothetical untenable scenario, he should not have brought the attention of his employer to the matter he did identify. It was not proper of him, one would say in such an absurd construction, to challenge this state of affairs. The state of affairs that "should not be challenged or complained about", is that, despite being urged to do so by multiple supervisors, the person responsible for ensuring that every fire appliance was available for every emergency, simply declined to do so. He didn't only fail to do so, he refused to do so, and still does. He is permitted to. 26. In that absurd interpretation of events, it would have been right and proper to prevent the danger from being publicised. It would have been "reasonable management action" to penalise the person who complained. Thus, the reaction to a complaint clearly provided for by Section 210 (1) (j) would not have been victimisation. 27. It is not for us to entertain the absurd, however. Mr Buchanan is a victim of his conduct in the public interest. That which is now happening, and has happened. What is happening today, is part of " ............all acts and omissions capable of constituting victimisation in the statutory sense.............." and should be ended by an order of this Commission. 1. On 14 November 2019, a Full Bench of the Commission (Chief Commissioner Kite SC, Commissioner Sloan and Commissioner Webster) in Bossak v Health Secretary in respect of Murrumbidgee Local Health District ([2020] NSWIRComm 1009) refused leave to appeal against my decision in another victimisation matter (Bossak v Murrumbidgee Local Health District [2019] NSWIRComm 1054). Following the refusal of the Full Bench to grant leave to appeal, the applicant filed a supplementary written submission dated 25 November 2019 which contained the following: 1. This submission arises from the proceedings before the Commission held on Monday 18 November. 2. We have been directed to provide our submission as to the distinction we identify between this matter and the findings of the Commission in the matter of Bossak v Murrumbidgee Local Area Health District, decided by the Commission as presently constituted, and with respect to which, Leave to Appeal was refused. 3. The distinction is, in our submission, to do with Causation, as follows: a. This matter In this matter, there is no doubt that the dispute between the parties, and the current predicament of Inspector Buchanan arises from the complaints made about the performance of a fellow employee of Inspector Buchanan, Mr Falconer. Mr Buchanan alleged that Mr Falconer's lack of attention to his duties had given rise to serious safety issues. He is backed up by others, who are available to give evidence (see the statements attached to his filed affidavit). In that respect, we say that the jurisdiction of the Commission is enlivened pursuant to Section 210 (1) (j): (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health.................................. We say that, as a consequence of the complaint, Inspector Buchanan has been victimised, as that term is understood by this Commission (see, inter alia, Davis v Channel 7: (one who suffers some injury. hardship, or loss. is badly treated or taken advantage of, or the like), While the basic facts are agreed (complaint followed by adverse action towards Inspector Buchanan), we understand that the Respondent maintains that Inspector Buchanan has not been victimised according to the Act, but has been dealt with by reasonable management action, because he has "bullied" Mr Falconer. By way of underlining the connection between the complaint about Mr Falconer, the conduct towards Inspector Buchanan, its effect, and therefore the state of being victimised, we attach the Doctors Certificate of Doctor Lupisan of 22 November 2019. ii. Bossak matter The dispute (in part) between the parties, on the other hand, in Bossak, was that the causation was disputed. The Commission held (in summary) that there was no cause and effect relationship. It thus did not need to go to the next step of determining whether or not the conduct was "victimisation", The "cause" alluded to unsuccessfully, was that Dr Bossak had claimed the benefit of an award (S210(1) (e) ). He had also made a claim of bullying. (S210(1) (j) ). The Commission found no connection on either head, with Dr Bossak's status within the employment. Further to these two distinctions, the Commission also considered other events over 13 years involving Dr Bossak's treatment by his employer. It found no connection between those events and his claiming the benefit of an award, or his making a bullying complaint. The Commission accepted that the employer genuinely acted towards Dr Bossak for bona fide "clinical standards", reasons. The Commission did not rule one way or the other on these "reasons" being correct or incorrect, but found that they were contributing reasons nevertheless. In this case, the dispute is to do with the rightness or wrongness of the action of the employer, arising from the conduct of Inspector Buchanan. lt is not about causation. That is accepted. The record discloses that all of this matter before the Commission is utterly connected to the issues raised by Inspector Buchanan concerning this fellow employee, Mr Falconer. What needs to be determined here, is whether or not the issues raised (there being no dispute that Inspector Buchanan has been removed from his substantive job, and placed in circumstances constituting loss etc (see the definition) are to do with ........... a complaint about a workplace matter that the person considers is not safe or a risk to health...... There is no dispute that the circumstances of Inspector Buchanan arise from his complaints about Mr Falconer (we repeat, supported by others, by way of attachments to his Affidavit - who will be available to give evidence). We claim that those circumstances constitute victimisation. In the absence of agreement, that is the matter to be determined by the Commission. We ask that this supplementary document be considered in conjunction with our previous submissions, and the evidence. 1. The attached medical certificate of Dr Lupisan dated 22 November 2019 stated: Mr Raymond Buchanan IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD Friday. 22 November 2019 TO Thursday. 28 November 2019 INCLUSIVE HE is FIT to WORK on Suitable Duties since July 2019. He IS FIT to Work at his previous Work Location at Katoomba. He IS NOT FIT to Commence Remedial Actions as doing this could trigger psychological distress and potentially lead to recurrence of his Anxiety and Depression. I do not believe this is a chronic Injury. This is only brought about by the case being heard at present. I believe the Mr. Buchanan can make a full recovery if he will be supported with a planned return to work and provide significant value to Fire Rescue New South Wales and the communisty. Respondent in reply 1. On 2 December 2019, the respondent filed an outline of further reply submissions which contained the following: Application filed out of time 25) It is clear that Inspector Buchanan has filed his application substantially outside of the time limit under section 213(3) and any application by him now to extend time under section 213(4) ought be refused. There are no dates in the affidavit of Inspector Buchanan dated 19 August 2019 (the Buchanan Affidavit) that give any insight into the date on which Inspector Buchanan says any alleged victimisation commenced or the date of the last alleged act of victimisation. Some particularisation of this is required when there is a strict time limit of only 21 days applicable to the legislative relief sought. 26) To the extent that it is the letter from FRNSW dated 7 May 2018 advising Inspector Buchanan of the finding of misconduct that is said to constituted the relevant act of victimization, Inspector Buchanan received this on 8 May 2018… To the extent that the victimization is alleged to have occurred as a result of the entry into the Release, this is dated 10 October 2018. 27) The only assertions contained in the Buchanan Affidavit that could relate to any asserted victimization appear to entirely or largely relate to events having occurred in 2016 to 2017: see [21]­[26]. At [29] of the Buchanan Affidavit, Inspector Buchanan says that he 'advised the respondent that Sean Falconer's itineraries were often incorrect in October 2016.' There is no mention of any conduct in response to this by FRNSW, and certainly no evidence in the affidavit of any conduct that could constitute victimisation or a causal link between any alleged victimisation and Inspector Buchanan advising FRNSW that Mr Falconer's itineraries were incorrect. There is not only an absence of evidence of alleged victimisation, but in addition no date on which it is said to have occurred. The only dates in the affidavit relate to conduct occurring 2-3 years ago. Even if the later dates of 8 May 2018 or 10 October 2018 are taken to be the relevant dates, the Application is still approximately 8-13 months out of time. 28) The current proceedings are therefore patently out of time with no reasonable or plausible explanation as to why. As was concluded in not dissimilar circumstances in Bossak at [43]: These matters occurred 12 years ago. It is far too late to now claim that the applicant was victimised because he claimed to be entitled to the benefits of the Staff Specialists (State) Award. 29) At [44] and [46] in Bossak, Commissioner Murphy went on to say: Even if I accepted (which I do not) that the conduct of GSAHS in 2007 was part of a continuum of behaviour which culminated with the Smyth Report on 9 October 2018, from which time the 21 day time limitation in subsection 213(3) of the Act began to run, this aspect of the applicant's claim must still fail for the following reasons." … Even if it were the case that a victimisation claim based on these events was technically "within time", it would be entirely unfair and unrealistic to expect the respondent in 2019 to be able to produce evidence to meet the reverse onus in subsection 210(2) of the Act because the applicant has now, 12 years after the event, decided to cry "Victimisation!"." 30) While the period of time, in the instant proceedings, since the accrual of any possible cause of action is shorter than that in Bossak, the Application is nonetheless significantly out of lime. To the extent that there is now an assertion that there was a 'continuum' of alleged victimization, there is no evidence of this. 31) Given the entirety of the circumstances in the instant case, the apparent lack of bona fides in the Application and the absence of evidence demonstrating a reasonable basis for doing so, there is no 'sufficient reason' for any extension of time to be granted under section 213(4) of the IR Act for the reasons identified in Jannell Storr v Industrial Relations Secretary on behalf of the Secretary, Department of Justice (Corrective Services NSW) [2018] NSWIRComm 1049 at [21]-[23]. The Application ought be dismissed. Determination 1. The hearing of this matter began on 25 February 2020. 2. During her opening address, counsel for the respondent, Ms Thew, requested that the applicant's solicitor, Mr McArdle, identify the conduct of the respondent upon which the applicant was relying and the date on which it occurred "for instance, the date that we're supposed to be going from in terms of the relevant date for the - from when the time starts to run, what is the act, the conduct of the respondent of which he complains, like, if there's one incident or ten." The following exchange then occurred: MCARDLE: Quite simply, Commissioner, because Inspector Buchanan called attention to this fellow not training people as he was required to, because he did that, today he is-- COMMISSIONER: This was back in 2016 or-- MCARDLE: Yes. Because he did that, on a daily basis he is now worse off. He is currently between 15 and $30,000 a year worse off. COMMISSIONER: So that's your ongoing victimisation-- MCARDLE: Yes, it is, yes. So there's no - if you want the time on which to take the 21 days, it's today. COMMISSIONER: Yes, thank you, I think I understand that. THEW: Commissioner, I don't think the Act works retrospectively like that. The section doesn't - it's not today. The date from which the time commences to run is not today. To the extent that there's been any aspect that Inspector Buchanan can say he's - any evidence to show he's actually worse off for any period of time, but if - first of all, could I possibly get the date in 2016 of when Inspector Buchanan first notified that there was an alleged deficiency in the training being— …………………………… THEW: But I don't know - I'm asking my opponent which date he says is the date from which time runs and which date or which are the actual specific incidents that he says constituted victimisation? Which are the incidents that constitute a breach of s 210? Even if he gives me the first one, the date of the first one. COMMISSIONER: Are you able to assist? MCARDLE: The principle in Davis, adopted by yourself in Bossack and confirmed by the Full Bench, that is, it's a state of being. It's a continuum of events. It's not one event that takes place. It is because of something. If we look at the application, Commissioner, para 18. COMMISSIONER: So that's about the first time that-- MCARDLE: The applicant sought to have Mr Falconer provide a programme of training. That has correlation and that's also in his affidavit at para 21, in or around August 2016. If we look at exhibit 2, November 2016. So this all works. In about August 2016 he raised his concerns. In about October 2016 he sought to have Mr Falconer provide a programme of training; that's bullying, apparently. He sought to have him provide a programme of training and the response was the 24 November 2016, according to exhibit 2, and here we are. COMMISSIONER: So is that the first act of victimisation, Falconer lodging a complaint? MCARDLE: No, there's the - if, as should have happened, the complaint had been dismissed as spurious, then no. The act of victimisation is a person asks someone to provide a system of training because he was rightly alarmed at the absence of trained persons and, if we look at the spreadsheet attached to his affidavit, he was therefore rightly alarmed at the extraordinary number of delayed responses to fire calls-- COMMISSIONER: I think what Ms Thew is enquiring about is what was the act of victimisation? MCARDLE: Yes. That-- COMMISSIONER: Mr Buchanan being alarmed about something-- MCARDLE: Correct. COMMISSIONER: --doesn't create victimisation. MCARDLE: I was just about to say. He became, as any reasonable person would, he became worried. We've got August, we've got October. Then in November we've got a complaint by Mr Falconer and then the next entry in exhibit 2 is the first complaint was investigated by the professional standards unit. Not Mr Falconer. He wasn't investigated. The person who wasn't doing the training. I notice no one has denied that, by the way. Mr Falconer wasn't investigated but the person calling attention to the health and safety issue pursuant to s 210(1)(j) was investigated. That's the commencement. COMMISSIONER: So that's late 2016 to early 2017, the investigation. MCARDLE: That's the first. Then on we go, chapter after chapter-- COMMISSIONER: Up to and including today. MCARDLE: Yes, and it has cost him a lot of money. It has cost him career progression. It has cost him earnings opportunities. Here he is today because he became worried about delayed responses to fires. I don't know much about fires but I think the longer you take to put them out, the worse it is. He became worried about that and as a result of him being worried about it and calling the attention of - and making a complaint about it, calling pursuant to s 210(1)(j), here we are today, he's about $30,000 a year worse off and his very employment is in question as a result of him doing that. Exhibit 2 is an exquisite iteration of all of the things that have happened to him because of that complaint pursuant to s 210(1)(j). COMMISSIONER: Now that the issue-- MCARDLE: That's the point. COMMISSIONER: --has been raised, I want to just raise this with you because it's something that's been exercising my mind. It's a hypothetic. We'll move Mr Buchanan out of the picture for the moment. You have a public servant who is investigated for misconduct and misconduct is found to be established and he's demoted from a grade 12 clerk to a grade 6 clerk, a significant demotion. Then doesn't appeal it, as could be done under pt 7 of ch 2 of the Act. Does nothing for 10 years and then alleges that the demotion is an act of victimisation for a prohibited reason set out in s 210. In that time the loss, if you like, or the impact of the demotion is ongoing. Every pay period, that public servant is taking home less than he was 10 years previously, taking into account inflation and the like. Are you saying that, because of that, that individual is entitled to run a victimisation claim and not have any issue as to the timing or the 21 day time limit that is set out in the legislation? MCARDLE: See, that's finite because he was - this gentleman has had a series of things happen to him, including a representation that he dismissed last year and when he refused to sign the deed. COMMISSIONER: But your argument is that the victimisation is ongoing because of, as I take it, the decision to transfer him to Parramatta, which you claim is victimisation, stands, even though he hasn't gone there. He's on leave at the moment. MCARDLE: His loss of money-- COMMISSIONER: How is that different from the hypothetical I just postulated? The loss of money continues indefinitely. MCARDLE: The longer you leave it, the less merit you have, obviously. That hypothetical public servant, yes, indeed. With the benefit of hindsight, he should have done something about it when something happened but the something that happens to him continues. There are various things happening to him. One of them is he has run out of leave. If we go backwards in time, he was assigned to Parramatta. Without just cherry-picking things as we go backwards-- COMMISSIONER: All of those things will continue and compound going forward in time. MCARDLE: Unless we do something about it. COMMISSIONER: That's what I'm troubled by. At what point does the entitlement to seek relief under s 213 expire? MCARDLE: I'm aware of no authority on that but if the authority is that it has to be within 21 days of X happening, then Mr Davis wouldn't have won. 1. I reject the proposition put on behalf of the applicant. There is nothing in the decision of the Full Bench (Cahill VP, Hill and Maidment JJ, Redman C) in Davis v Amalgamated Television Services Pty Limited ([1998] 81 IR 364) to support it. In his victimisation application in that matter, Mr Davis, who had previously initiated unfair contract proceedings against his employer, set out the following particulars (at 365-366): 1. The Applicant was a senior television reporter formerly employed by the Respondent in the program known as 'Witness'. 2. On 31 January 1997 the Applicant commenced proceedings against the Respondent under ss 106 and 107 of the Industrial Relations Act 1996 (NSW) being proceedings number IRC 459 of 1997 before the Industrial Relations Commission of New South Wales in Court Session ('proceedings'). ………………………….. 6. Since the proceedings were initiated the Respondent placed demands on the Applicant which were not consistent with past conduct and practice and were not reasonable incidents of the Applicant's employment with the Respondent due to his participation in the proceedings as follows: (a) the Respondent failed to provide the Applicant with assignments or work for significant periods of time since the date proceedings were initiated despite a large number of constructive suggestions which the Applicant made available to the Executive Producer of 'Witness' concerning appropriate stories for the program; (b) the Respondent placed unreasonable demands on the Applicant relating to work loads and deadlines; (c) the Respondent required the Applicant to provide information on matters outside his knowledge and control; (d) the Respondent accused the Applicant of adopting an obstructionist attitude to his work; (e) the Respondent accused the Applicant of failing to provide the information referred to in sub clause (c) above; failing to take instruction from the executive producer of Witness; and failing to conduct himself in an acceptable manner; (f) the Respondent unreasonably subjected the Applicant to unwarranted threats of disciplinary action on a number of occasions; (g) the Respondent failed to feature the Applicant in any advertising and promotions relating to the program 'Witness'; and (h) the Respondent alleged that the Applicant was threatening to subpoena staff for the proceedings. ………………………………… 8. On 28 April 1997 the Applicant was summarily dismissed from his employment with the Respondent. 1. In its decision, the Full Bench considered dictionary definitions of the word "victim" and the meaning of the word "victimise" as follows (at 380-381): In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". So far as a prospective employee is concerned the word "victimise" must be construed in the context of the word "prospective". In this respect s 213(2)(d) comprehends the remedy of an order requiring the employer to employ the "prospective" employee, so that "victimise" must also encompass, at the lowest, a refusal to employ. Furthermore, s 213(2)(e) comprehends the remedy of an order requiring the employer not to carry out a "threat" to victimise an employee and for that to have any application and effect "victimise" must be taken to comprise conduct involving threats to victimise by the employer. However, it is unnecessary in this case to decide the full ambit of the word "victimise". ………………………………. In our opinion the actions and/or omissions attributed to the respondent which are contained in par 6 of the particulars of claim, or any one of them with the possible exception of (h), are, particularly in the context of immediately preceding threats, quite capable, in law, of constituting victimisation within the meaning of the word "victimise" as we have earlier construed it; and those threats themselves, as we subsequently discuss, are themselves capable of constituting victimisation within the meaning of s 210. Indeed, even if its meaning was confined, as was argued by Mr Rothman, to that contained in the 1991 Act, the various acts and omissions in question are capable of constituting victimisation as defined in s 481(2)(a), (b) and (c) thereof. And later (at 396): His Honour was in error first in failing to consider the matter in the context of all acts and omissions capable of constituting victimisation in the statutory sense and secondly, in the positive findings which he made, in the absence of any evidence by the respondent, that the respondent dismissed the appellant for what it saw as a failure to comply with the provisions of his contract and not because he instituted the s 106 proceedings. 1. There is nothing in the passages from Davis cited above, which are relied upon by the applicant in these proceedings, or elsewhere in the Full Bench decision, that supports the proposition that victimisation continues beyond the act or acts or course of conduct of the respondent ad infinitum because the victim continues to suffer the detriment caused by respondent's victimisation. 2. At page 390 of the decision, the Full Bench stated: Thereafter there was adopted by the respondent a course of conduct, involving acts and omissions, in respect of the appellant which are set out in detail in his affidavits. That treatment, in summary, consisted of the following: (i) requiring the appellant to provide a detailed list of the hours worked by him and of any time off; (ii) imposing time limits on the appellant for the performance of work which involved unreasonable workloads; (iii) requiring the appellant to provide information on matters not within his knowledge and control; (iv) falsely accusing the appellant of failing to provide proper information, failing to obey instructions and failing to act in a reasonable and acceptable manner; (v) making threats of disciplinary action against him; and (vi) failing to provide him with assignments or work for lengthy periods and to properly feature him in promotions of the programme. Summary dismissal was the final relevant act in the course of conduct by the respondent towards the appellant. 1. The summary dismissal of Mr Davis, which the Full Bench referred to as "the final relevant act in the course of conduct by the respondent towards the appellant", occurred on 28 April 1997. The victimisation application was filed on 16 May 1997, well within the 21 day time limit specified in ss 213(3) of the Act. 2. Presumably, on the applicant's hypothesis, if Mr Davis had not filed his victimisation application at that time and could now demonstrate that he was still suffering the detriments of losing his job with Amalgamated Television Services 24 years ago, he would be entitled to make a victimisation claim today because the victimisation was continuing and the 21 day time limit had not yet begun to run. 3. Without expressing any final view as to whether or not any conduct of the respondent towards the applicant constituted victimisation of him as contemplated by s 210 of the Act, I am prepared to accept 10 October 2018, the date on which the FBEU and FRNSW executed the Deed of Agreement in settlement of the 2018 Dispute, which confirmed the transfer of the applicant to Parramatta, as the date of "the final relevant act in the course of conduct by the respondent towards the appellant" (Davis at 390). On this basis, the victimisation application should have been filed by 31 October 2018. It was not filed until 20 June 2019, 232 days out of time. 4. Subsection 213(4) of the Act allows the Commission to accept an application that is made out of time if the Commission considers there is sufficient reason to do so. This consideration includes having regard to the reason for, and length of, the delay in making the application (ss 213(4)(a)). Given the approach of the applicant as discussed above to the effect that the 21 day time limit had not begun to run even up until the commencement of the hearing on 25 February 2020, no reason for the delay had been proffered up to that point. 5. On the second day of the hearing, 26 February 2020, Mr McArdle tendered into evidence a written statement signed by the applicant for the purpose of providing a reason for the delay in making the Application. That statement contained the following: 1. This is a further statement I make arising from the proceedings of 25 February which goes to timing of my application in this matter. 2. This statement is true and correct in every particular. 3. I have never reached any agreement or accommodation with my employer with respect to their treatment of me which began as recorded in the chronology, which is Exhibit 2, presented yesterday, 25 February. 4. I refused to sign any deed or agreement in or about October 2018. 5. After that, the following things happened: a. Although I am a member of my union and value its role highly, and value the leadership and competence of its State Secretary, Leighton Drury, I lost confidence in those who were then acting for the union, whom I did not believe had acted in my interests. b. I then relied on my pending workers compensation claim being accepted. I did not know what else to do. c. I was very ill from this matter, and was diagnosed with a psychological injury. I have since been certified as fit. Most recently, Dr McClure who I was sent to by my employer in January 2020, told me that he was going to report to them that I was fit to work. d. Then, on about 4 April 2019, my workers compensation claim for psychological injury was rejected because the insurance company deemed that the actions of the employer arising from my complaint about Mr Falconer and the subsequent behaviour towards me, were "reasonable management action". e. I then approached the only lawyer I knew, Mr Dave O'Neil. He wrote back to me on 9 April announcing that he had been appointed a Magistrate. I attach his email. f. I then consulted Turner Freeman at Penrith, who had the matter reviewed. That was not successful. g. In the meantime, the list of persons who were to receive service medals was published on 29 April. I was the only equivalent person who did not get one. This, in Fire and Rescue NSW is a public shaming, and a statement in the negative about a person. I felt humiliated and still do. It was foreshadowed to me by them in a letter some months before. I attach it. h. Turner Freeman wrote to me on 20 May. I attach their letter. They told me that I should consult an employment lawyer. i. I then made contact with Chris McArdle Employment Lawyer. j. He considered the history, and recommended that we commence this action. I gave him the go ahead on 5 June. k. After the work that was needed, it was filed on 19 June. 1. I am prepared to accept everything in this statement as fact. The difficulty for the applicant is that none of the matters raised provides a reason for the delay. 2. I accept that the applicant was "very ill from this matter". However, there is no medical evidence before the Commission to establish that the applicant's illness hindered his capacity to institute victimisation proceedings between 10 and 31 October 2018 or any time after that up until 20 June 2019. 3. On 31 October 2018 the applicant commenced workers compensation proceedings and, on 16 November 2018, he provided a statement to Catherine Quirke, a workers compensation investigator acting on behalf of the respondent's insurer. Parts of that statement were read onto the transcript in these proceedings by the applicant: Q. …Paragraph 58. Now, if I could get you to read from halfway through that paragraph. Well, you can read the whole paragraph, that might be easier, if-- A. "The matter was due to be heard on the Wednesday morning. We are now at approximately the 64 week mark and I've not heard directly from the union industrial relations officer. He told me that he read the amendments. The document was clear and told me the deed related to the IRC. I said that I would not be prepared to sign--" Q. No, I don't think that's what it says, Inspector Buchanan. A. Sorry. "I said I would be prepared to sign if that was the case," apologies. "I then sent an email stating I was signing it in good faith and was only indemnifying them to the IRC matters, not the investigation. This was around 8.15am." …………………………………… Q. Read paragraph 59, 60, 61 and 62 out loud, since we're reading them out loud? A. "I then received another email stating that the deed actually did relate to the investigation as well as the IRC. They told me that I had five minutes to contact the office to confirm what I wanted to do. I was horrified and rang the industrial officer. I spoke to him and acknowledged it related to the," sorry, "I spoke to him and he acknowledged it related to the investigation." I'm denying that I need glasses. "I told them this was not on, as I should not be on remedial action. I called Leighton and told him that it was not on and I was struggling. I told him I would not indemnify them and wanted to clear my name." Point 60: "I heard nothing Wednesday or Thursday, and on Friday as part of the remedial action I had to attend a meeting in town. This is near the union office and I attended around midday. I asked them how they could progress," sorry, "I asked them--" Q. It might be a typo there. Maybe the word "have" should be-- A. "--how they could progress it when it was outside the industrial guidelines. She said this happens all the time. I asked about the outcome on Wednesday at the IRC. She said it was finalised. She said I kept my rent, not the kilometres and that I accepted the transfer. They signed the deed as I refused and this was accepted by the IRC. I did not have the money to defend myself in a civil court. The truth seems irrelevant." 1. I accept that the applicant was relying on his workers compensation claim being accepted up until 4 April 2019 when it was rejected. However, no reason has been disclosed in the evidence to explain why these victimisation proceedings could not have been instituted at or about the same time as the workers compensation claim. The two sets of proceedings concern different legal issues and the making of the Application was in no way contingent on the outcome of the workers compensation claim. 2. After the rejection of the applicant's workers compensation claim on 4 April 2019, a further 77 days elapsed before the Application was filed. During that period, the applicant consulted a lawyer who, on 9 April 2019, advised the applicant that he had been appointed as a Magistrate. 3. On 10 May 2019, the applicant met with another solicitor in relation to his workers compensation claim. Correspondence from this solicitor's firm to the applicant dated 20 May 2019 stated: We note that you were concerned about the administrative steps taken by the Professional Standards Unit in regards to this investigation. We advised that you would need specialist employment law advice in regards to this matter and that we will not be able to properly assist you in regards to this particular industrial relations grievance. 1. The applicant then consulted Mr McArdle and gave him instructions to proceed on 5 June 2019. The Application was filed 15 days later. I readily accept that, upon receiving instructions, Mr McArdle acted with all due diligence and despatch. He bears no responsibility for the predicament in which the applicant now finds himself. 2. Nevertheless, by the time the Application was filed on 20 June 2019 it was approximately eight months out of time. No sufficient reason has been put to the Commission to explain this lengthy delay. 3. I have also had regard to the potential hardship that may be caused to the applicant by the Commission declining to accept his Application, including the loss of the opportunity to mount a claim to recover the pecuniary loss that he claims he will incur as a consequence of his transfer to Parramatta. 4. However, ss 213(4) of the Act mandates that, for an out of time application to be accepted, the Commission must consider that there is sufficient reason to do so. Given the length of the delay in making the Application and the lack of any explanation for this delay, I do not consider there is sufficient reason for the Commission to accept the Application out of time. Paragraph 3 – applicant estopped by the Deed of Agreement 1. An unusual feature of this case is that, after the FBEU notified a dispute to the Commission pursuant to s 130 of the Act over the proposed remedial action to be taken in relation to the applicant as set out in the letter of 7 May 2018, which is referred to at [12] above, the dispute was settled on terms set out in the Deed of Agreement which was executed by the FBEU and FRNSW on 10 October 2018 (at [17] above). The essential elements of that settlement were that the applicant would accept the transfer to Parramatta but would not lose, as was previously determined by the respondent, the benefit of the rental subsidy he had been receiving pursuant to clause 30 of the Award. The applicant now claims that the Deed of Agreement was executed by the FBEU without his authorisation and that he is not bound by its terms. Case for the respondent 1. The written outline of submissions filed by the respondent on 24 July 2019 contained the following: The dispute giving rise to the Deed of Agreement. 17. The FBEU filed a Dispute Notification in the IRC (File No. 2018/278798). On behalf of their member, the FBEU specifically stated that: "... genuine remedial action is not opposed". 18. While Inspector Buchanan's conduct matter was under review, separately his entitlement to Clause 30 benefits was under review in connection with an unrelated prosecution in the NSW Supreme Court, FBEU v FRNSW 2018/153438. 19. Clause 30 of the Crown Employees (Fire & Rescue NSW Permanent Firefighting Staff) Award 2017 (the Award) requires FRNSW to own or rent residential premises where it requires an employee of a rank qualified to occupy those premises and then subsidise rent for the employee. In the case of Inspector Buchanan, the need for premises to be provided to him in Springwood when working at Katoomba had been in doubt and under review for some time; separate to and notwithstanding the misconduct matter or the remedial transfer to Parramatta. 20. On 10 October 2018, following conciliation in the IRC before Chief Commissioner Kite an agreement was reached with FBEU under which the Applicant would continue to receive a rental subsidy pursuant to Clause 30 of the Award during the period of the remedial action. In all other respects the remedial action as imposed in May 2018 would stand. 21. The Deed was entered into between FRNSW and the FBEU as the applicant's representative on 1O October 2018. 22. The Respondent is entitled to contend that the Applicant instructed his industrial organisation to act in his best interests. FRNSW entered the Deed in good faith. FRNSW was and remains entitled to operate under the assumption that the Applicant willingly accepted the benefit of the Deed as negotiated by his union, thus giving him the continued financial benefit of a substantial rental subsidy of $386.46 per week since 10 October 2018; being approximately 41 weeks and totaling $15,844.86. …………………………… Estoppel 41. The Respondent submits that the Applicant is estopped from bringing this application by virtue of the Deed entered into by the Respondent and the FBEU as the representative of the Applicant on the 10 October 2018. Relevantly the Deed contains the following provisions: "7. FBEU hereby releases FRNSW from all liability relating to or arising from the Dispute; save as to Inspector Buchanan's right to claim under NSW Workers Compensation legislation as may be applicable.; and 9. The Parties agree that it is their intention by entering into this Deed to resolve once and for all claims of every description arising out of the Dispute and IRC 2018/278798". 42. The Respondent further submits that, in the alternative, the Applicant is estopped by virtue of his conduct in willingly accepting over $15,000 in rental subsidy since 10 October 2018, which payment FRNSW has made in good faith in observance of its obligations under the Deed which the Applicant now seeks to repudiate. 43. The Respondent further submits that the Applicant is estopped by virtue of the rule in Henderson v Henderson (1843) 67 ER 313 and Port of Melbourne Authority v Anshun Ply Ltd [1981] HCA 45 from raising the allegations in this application. These factual matters upon which the Applicant now spuriously seeks to rely were well known to the Applicant at the time the FBEU lodged a s130 dispute involving matters pertaining to this Applicant and ultimately conciliated before Chief Commissioner Kite. If these same facts and circumstances amounted to victimisation such as would have enlivened the protections of S.213 of the Act, then these matters should have been raised before Chief Commissioner Kite in 2018. 1. The further written outline of submissions filed by the respondent on 27 September 2019 contained the following: Estoppel-Deed of Release 28) It is the Respondent's further submission that the Applicant is estopped from bringing this action by virtue of a confidential Deed of Agreement entered into on behalf of the Applicant when represented by the FBEU on 10 October 2018 (the Deed); and further by the Applicant's specific conduct since 10 October 2018 continuously receiving benefits conferred under the Deed. 29) The Affidavit of Stephen Parkins at paragraph 13 indicates that the Applicant continues to reside in premises rented by FRNSW. FRNSW pays the Applicant a subsidy of $772.92 per fortnight to cover rent for premises in Springwood NSW. The Applicant has benefitted since 10 October 2018 in subsidies totalling (approximately) $18,936.54. 30) If not for the Deed the benefit of the rental subsidy to the Applicant would have ceased. The Respondent would have ended the lease agreement because the Applicant was no longer required to live in premises rented by FRNSW. 31) The Applicant represented by the FBEU challenged the implementation of the 'remedial transfer' component of the remedial action outcome and loss of benefits under the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 (Award) Clause 30 rental subsidy in proceedings against FRNSW before the IRC in matter 2018/278798. 32) Matter 2018/278798 was resolved between FBEU and FRNSW by execution of the Deed signed by the FBEU State Secretary Leighton Drury and Ms Joanne Prados-Valerio FRNSW Senior Industrial Relations Officer on 10 October 2018. 33) FRNSW is entitled to rely upon the representations of the FBEU acting by and on behalf of its member. FRNSW had no reason to question the authority for FBEU to act for its member. FRNSW had no reason to doubt that FBEU was operating on behalf of and thus capable of acting to bind its member, the Applicant in this matter, in executing the Deed to settle and discontinue matter 2018/278798. 34) The Applicant appears to be suggesting that he was poorly represented by the FBEU in matter 2018/278798. The Respondent relies on precedent indicating that the actions of the Applicant are the central consideration in deciding whether the explanation of representative error is acceptable: Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR. 35) In Australia Postal Corporation v Gorman [2011] FCA 975, Besanko J held that the existence of a binding settlement or "accord and satisfaction" extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. His Honour stated: "As I have said, a valid and effective accord and satisfaction extinguishes the pre­existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success." [Emphasis added.] 36) In lndu Sareen v University of Southern Queensland [2018] FWC 4659, Commissioner McKinnon formed the view that settlement terms had been agreed during the conciliation and those terms were to be formalised in a Deed of Release to be prepared by USQ's lawyers. The Commissioner dismissed the application forming the view that it had no reasonable prospect of success, having satisfied herself: "that the accord and satisfaction between the parties is a complete answer to Ms Sareen's unfair dismissal application." [Emphasis added.] 37) In refusing the Applicant's application for leave to appeal, the Full Bench referred to the High Court decision in Masters v Cameron [1954] 91 CLR 353 in the following terms (at 360): "Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. [Emphasis added.] Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract." 38) The Full Bench went on to say: "In each of the first two categories identified in Masters v Cameron and in the fourth identified in Baulkham Hills there will be a binding contract. In the first and fourth categories there is a contract binding the parties at once to perform the agreed terms whether the contemplated formal or additional document comes into existence or not. In the second category there will be a contract binding the parties to join in bringing the formal contract into existence and then to carry it into operation. [Emphasis added.] The agreement in this category is binding immediately but the performance of a particular term or terms will not be required until a formal document is executed by the parties. This is so even though there may be later disagreement between the parties about the terms that are to be included in the formal document to be executed. 39) In Trpimir Caleta and Northern Sydney Area Health Service, Matter No IRC 1581 of 1994 a Full Bench of the IRC dealt with a somewhat similar question to the Applicant's case. The appellant in Trpimir Caleta had been employed for many years as a catering officer at Macquarie Hospital. In February 1992 he was charged under the Crimes Act 1900 with 'larceny as a servant' and went on leave pending the hearing of that charge. In June 1992 he was convicted and his employment was terminated. In November 1992 the conviction was set aside on appeal and the appellant enlisted the aid of his Union in seeking reinstatement. The appellant signed a section 246 application prepared by the Union. It was not filed because the Union took the view that because the application was well outside the time provided by the Act, it would be better to first seek to negotiate a settlement direct with the respondent. These discussions resulted in the appellant resuming his former duties at the hospital on 9 December 1992. The agreement reached between the Union and the respondent was that the appellant would be re-employed on the basis of six months' probation and without continuity of service. On 16 December 1992 the appellant's solicitor lodged a section 246 application on his behalf. The appellant sought reinstatement to his former position with continuity of service for all purposes, despite the agreement he had accepted as brokered on his behalf by his industrial organisation. The appellant argued that the agreement entered into between the Union and the respondent was an agreement which the appellant argued he had not authorised and by which he should not be bound. 40) The Full Bench, in dismissing the Applicant's appeal, held: "The appellant was a member of the Union who enlisted its assistance in seeking reinstatement. He was represented by the Union in the negotiations it instituted with the respondent over his reinstatement. He had been a Union member for many years, indeed an elected official, the President of the Macquarie Hospital Branch. He remained a member of the Union at the hearing of the appeal. On the evidence there is no basis for the view which the appellant said he had formed-that a deal had been done behind his back by the Union and the respondent. The appellant on his own evidence understood the basis upon which he was offered a job on 7 December. He accepted it. Why he did so may perhaps be explained by his stated love of his work, his absolute conviction that the job was 'his' and that he had done nothing wrong. His evidence was that he had in his mind that his discussions with Mr Burton about the matters of concern to him would be 'fruitful'. That the appellant did not succeed in convincing the respondent to restore his sick leave, long service leave and superannuation entitlements may well have been unexpected and a disappointment, but it is clear on the evidence that he understood that those things were not guaranteed if he returned to work on the basis of the otter made. In those circumstances we take the view that it would not do justice between the parties to permit the appellant to renege on the agreement negotiated on his behalf by his Union and understood and accepted by him. In our view it would be unconscionable to permit the appellant to take the benefit of that agreement and to ignore the conditions which were clearly attached to it. The appeal is dismissed." [Emphasis added.]. Case for the applicant 1. The following submissions were filed by the applicant on 14 October 2019: Estoppel 37. This is a suggestion that a document of settlement that the Applicant specifically objected to, very publicly refused to sign, and led him to seek alternative advice and commence these proceedings, "estops" him from proceeding 38. Every single authority quoted in support of this contention refer to attempts to renege on agreements. They are all the opposite of this case. This case is brought precisely because the Applicant will not agree to an onerous and prejudicial state of affairs that victimises him. The purported "agreement" that is referred to, exacerbates and seeks to legitimise the alarming conduct that has been meted out to the Applicant. 39. Estoppel for this purpose, means the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person 40. The previous action and statement of this person regarding this onerous and disingenuous "agreement document" that is now relied on was utterly and completely to reject it and refuse to be bound by it. That fact was recorded by officers of the Respondent. 41. This is also not a matter of breaking with the union negotiator after the event. That is another theme of the material advanced (see, for example, "Tripimir"). Before the event, and contemporaneously with the attempt to impose this "agreement", the Applicant refused to be bound by it. His position has been consistent. 42. The union could not have been held to be binding the applicant in their role in the rejected document. It was known at all stages that it did not represent an agreement, and the union imparted that knowledge to the Respondent. Even if an officer of the union had said that it did (they did not - they disclosed the refusal of the Applicant) they would have been misrepresenting the facts. Respondent in reply 1. On 2 December 2019, the respondent filed an outline of further reply submissions which contained the following (footnotes omitted): Dismissal of proceedings 3) Section 162(2)(h) of the IR Act provides that the Commission may dismiss proceedings at any stage if it considers the proceedings are frivolous or vexatious. 4) In Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [59] their Honours Hayne, Crennan, Kiefel and Bell JJ observed that that where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described as "frivolous". In Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [81] Judge Lucev observed that 'a proceeding is frivolous when, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable or when the proceeding is without substance, groundless or fanciful', citing Pickering v Centrelink [2008] FCA 561 at [27] per McKerracher J. 5) FRNSW submits that the Application ought be dismissed on the basis that the Application is frivolous in the sense that the Applicant has no reasonable prospect of prosecuting the proceeding by reason of the following: a) Inspector Buchanan's authorized representatives executed a deed of agreement (the Release) on behalf of Inspector Buchanan on 10 October 2018 pursuant to which a Notice of Discontinuance (the Notice of Discontinuance) was filed in IRC proceedings 2018/278798 (the 2018 Dispute Notification) and which released FRNSW from all liability relating to or arising from the Dispute. b) The Application was filed on 20 June 2019, substantially outside the 21 day time limit permitted under section 213(3) of the IR Act, which time commenced running from either 7 or 11 May 2018, or at the latest on 10 October 2018. c) At least some of the relief sought pursuant to alleged breaches of section 210(1)(a), (d) and (e) of the IR Act appears to be sought, at paragraph 1 of Part B of the Application, against Inspector Buchanan's own representative in the 2018 Dispute Notification proceedings, the Fire Brigade Employees' Union of NSW (FBEU), which is not a party to the proceedings. Release 6) The Release executed between Inspector Buchanan's authorized representative, the FBEU, and FRNSW, on 10 October 2018 relevantly releases FRNSW in respect of the following: a) from all liability relating to or arising from the dispute, save as to inspector Buchanan's right to claim under the NSW Workers Compensation legislation as may be applicable (clause 7); and b) The parties agree that it is their intention by entering into this deed to resolve once and for all, all claims of every description arising out of the dispute and IRC 2018/278798 (clause 9). 7) The Release thereby contains a mutual release in respect of al) claims of every description arising out of the Dispute and the 2018 proceedings. On the face of the Dispute Notification, clause 4 relevantly states that the dispute in relation to Inspector Buchanan was in respect of the following 'industrial matters': a) The transfer of two firefighters (including Inspector Buchanan) 'under the guise of remedial action', with remedial action being defined under the Fire Brigades Regulation 2014, with 'disciplinary and/or industrial action' being 'imminent' (clause 4(a) and (b)). b) The notification of the remedial action by letter from FRNSW dated 7 May 2018, the remedial action including a proposed transfer from the Katoomba Zone Office to the Parramatta Zone Office and the cessation of Inspector Buchanan's rental subsidy, amounting to approximately $20,000 per annum (clause 4(c)). 8) At clause 4(g), the Dispute Notification sought the assistance of the Commission in resolving the dispute 'regarding transfer', 'the imposition of financial penalty' and 'whether disciplinary action and remedial action can be applied concurrently'. Clauses 7 and 9 of the Release purport to resolve all of these matters in their entirety. 9) In addition to the mutual release in clauses 7 and 9 of the Release, it further contains the following operative terms: a) Clause 1 provides that the parties agree to the arrangements as set out in the letter from FRNSW to Inspector Buchanan dated 7 May 2018, at attachment B to the 2018 Dispute Notification. This letter includes the arrangement that Inspector Buchanan is to transfer to a position of the same rank to MW2 Zone Office, Parramatta, which occurred pursuant to the Release. b) Clause 4 of the Release provides that Inspector Buchanan will receive no allowance or other compensation for working at the MW2 Zone Office unless he is appointed as a Relieving Officer. c) An exception to the agreement in clause I of the Release is the arrangement in relation to Inspector Buchanan's rental subsidy, which subsidy continues to be payable by operation of clause 3 of the Release and which Inspector Buchanan continues to receive. 10) Contrary to the terms of the Release, the relief claimed in the Application under clause 4 of Part A includes that Inspector Buchanan immediately transfer back to his substantive position of Duty Commander at MW3 and in addition compensation in the sum of $110,000 for inter alia 'reimbursement of lost earnings being the difference between amounts paid, and overtime foregone, higher duties allowance not received, care allowance denied, travelling and relieving allowances denied'. While it is not clear specifically the allowances and lost earnings that Inspector Buchanan asserts he has foregone, or how this has occurred, it appears that these are said to flow from the transfer from MW3 to MW2. 11) To the extent that the relief sought in the Application is directly contrary or inconsistent with, or was the subject of, the Release, that relief ought not be permitted to be sought by Inspector Buchanan. 12) Inspector Buchanan appears now to say that the Release was entered into by his representative without his authorisation, however no evidence other than his own assertion has been adduced in support of that submission. The Release is a document that prima facie bears the signature of the parties to the release and FRNSW is entitled, in the absence of evidence from the other party to the Release to the contrary, to rely upon it for its full force and effect. 13) Moreover, there is no evidence adduced by Inspector Buchanan to the effect that he has taken steps to have the Release set aside, or, that if he did, he could possibly be successful in doing so given he has been receiving the benefits of the Release, namely the weekly payments in the sum of $386.46 per week, amounting to a total of $18,936.54 from the date of the Release on I0 October 2018 to 20 September 2018:… That amount has increased now by a further approximately 10 weeks' worth of rent in the approximate sum of $3,864.60, amounting to a total of approximately $22,801.14. 14) It is well established that if an executed deed of release bars all future proceedings against a respondent, a proceedings will be capable of being found to be without reasonable prospects of success or frivolous or vexatious: Australia Postal Corporation v Gorman (2011) 196 FCR 126 per Justice Besanko at [31]. In APC v Gorman, Besanko J said that a 'valid accord and execution is an answer to a claim' and 'there is nothing in the FW Act which suggests that an accord and satisfaction should not be recognised': at [33]. 15) APC v Gorman has not been overturned and remains the current law on the issue. It is frequently applied in the Fair Work Commission and was recently applied by DP Clancy for instance in Say Ng v Commonwealth Scientific and Industrial Research Organisation [2019] FWC 6573 at [85]-[88], where the DP said as follows: [87] As can be seen from Australia Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power under s.587(1) of the Act to dismiss an application on the basis that it has no reasonable prospects of success [or is frivolous or vexatious]. 16) Section 162(2)(h) of the IR Act is in similar terms to section 587 of the Fair Work Act 2009 (Cth) in that it provides that the Commission may dismiss proceedings at any stage if it considers the proceedings are frivolous or vexatious. 17) In Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) [2015] FCCA 2094, Judge Smith said at [25] that, even though the applicant in that case may be able to lead evidence at trial that he did not know what he was doing when he signed the release, that would not necessary mean that the deed would be found to be ineffective, given especially that Mr Nalbandian had accepted the benefits of the deed. 18) Similarly in the instant case, even if Inspector Buchanan leads evidence at trial that his representative was not authorised to enter into the Release on his behalf, that evidence may not be accepted and, even if it was, the deed may not to be held to be ineffective given he has accepted the benefits of the deed. 19) In Bossak v Murrumbidgee Local Health District [2019] NSWIRComm 1054 (leave to appeal refused), Commissioner Murphy in respect of a not dissimilar situation said at [50]-[52]: The facts in the present matter are not on all fours with those in Trpimir. That case involved an application for reinstatement which was settled by acceptance of an offer of re-employment with certain conditions. In the present matter the employment of the applicant had not been terminated. Nevertheless, a dispute had arisen over the terms of the applicant's employment. A settlement of the dispute was negotiated between GSAHS and ASMOF and the applicant expressly agreed to those terms of settlement. He now seeks to renege on that agreement 12 years after the event and claim that he had been victimised by his employer. Borrowing from the Full Bench, "it would not do justice between the parties" and "it would be unconscionable to permit the [applicant] to take the benefit of that agreement and to ignore the conditions which were clearly attached to it". 20) As with Bossak, in the instant case Inspector Buchanan's employment has not been terminated. Nevertheless, as occurred in Bossak, Inspector Buchanan asserts that a dispute has arisen over the terms of his employment, being the subject matter of the 2018 Dispute Notification and the current proceedings. As also occurred in Bossack, some time after the execution of the Release and settlement of the 2018 Dispute Notification and associated proceedings, Inspector Buchanan attempts now to renege on the terms of the Release. 21) As in Bossak, as well as Caleta Trpimir v Northem Sydney Area Health [1995] NSWIRComm 38, it would not do justice between the parties and would not unconscionable to allow Inspector Buchanan to take the benefits of the Release, as he clearly has, and to ignore the conditions which were clearly attached to it. 22) Further and in the alternative, the Application ought be dismissed by operation of the established principles of anshun estoppel, which operates to preclude the assertion of a claim, or raising an issue of fact or law, if that claim or issue was so connected with the subject of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not have been made or the issue not to have been raised in that proceeding: see for instance Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 per Payne and Brereton JJA at [51]. 23) As is clear from [5] of the affidavit of Theresa Mary Smith dated 27 September 2019, Inspector Buchanan did not raise in the investigation the matters he now raises in his Application even though he could have done. As is further clear, the 2018 Dispute Notification also did not include any assertion that entry into the Release somehow itself constituted victimization in breach of section 210(1) of the IR Act. As Commissioner Murphy observed in similar circumstances in Bossak in this regard at [47]: Secondly, the dispute notification filed on the applicant's behalf by ASMOF made no reference at all to the notion now being propounded by the applicant to the effect the conduct of GSAHS and the settlement of the dispute, which was eventually agreed to by the applicant and put into effect, constituted victimisation of him for any of the reasons proscribed in subsections 210(d), (e), (f), (g) or (j) of the Act, No allegation of victimisation was made at that time. 24) The Application ought be dismissed. Determination 1. The only evidence before the Commission as to whether or not the applicant authorised the FBEU to execute the Deed of Agreement on 10 October 2018, is the applicant's denial that he did. This seems extraordinary given that the FBEU were clearly acting in the applicant's interests when the union notified the dispute pursuant to s 130 of the Act on 11 September 2018. At that point the union was disputing the decision of the respondent to transfer the applicant to Parramatta as well as the cessation of the applicant's rental subsidy (see [14] above). 2. The dispute proceedings then progressed before the Chief Commissioner in the usual way and there is no dispute that the applicant was aware of them even though it is apparent that he did not attend any of the proceedings in the Commission. 3. At the resumption of the compulsory conference on 20 September 2018, the Chief Commissioner was handed a document by the FBEU representative that proposed a settlement of the dispute which involved acceptance by the applicant of the transfer to Parramatta but retention by him of the rental subsidy (see [15] above). It is difficult to accept that a responsible union such as the FBEU would propose such a settlement if it were aware that its affected member rejected at least one of its essential terms. 4. In any event, almost three weeks after the proposed terms of settlement were handed to the Chief Commissioner, on 10 October 2018 the dispute was settled, essentially on the terms proposed by the FBEU, by execution of the Deed of Agreement (see [17] above). 5. Neither party has called any officer of the union to give evidence about these matters in these proceedings. It may well be that there was a breakdown in communication between the applicant and the FBEU during this period but this is mere speculation. In the absence of any evidence to the contrary, I accept the applicant's evidence that he did not authorise the FBEU settle the dispute on the terms that it did or to execute the Deed of Agreement on his behalf. I accept that the applicant opposed settlement on those terms. However, that is not the end of the matter. 6. Shortly after the Deed of Agreement was executed by the FBEU, the applicant became aware of that fact. He was aware that, contrary to the initial determination, he would retain the rental subsidy and he has continued to receive the subsidy up until the present time. 7. At paragraph 42 of the applicant's written submissions (at [61] above) it is stated that the "union could not have been held to be binding the applicant in their role in the rejected document. It was known at all stages that it did not represent an agreement, and the union imparted that knowledge to the Respondent". There is no evidence before the Commission to support this assertion and it was put to none of the respondent's witnesses in cross-examination apart from Mr Holland. The following exchange took place between Mr McArdle and Mr Holland: Q. And you can confirm that Mr Buchanan did not sign the deed? A. Yes. Q. And you're aware that Mr Buchanan actually refused to sign the deed? A. No, I have no knowledge of that. Q. No one has told you that? You haven't read that in any of the material that's been tendered? A. No. 1. The respondent was, at all times prior to the initiation of these proceedings on 20 June 2019, entitled to regard the terms of the Deed of Agreement as binding on the applicant. There is no evidence that the applicant took any steps to have those terms set aside or otherwise revisited by the respondent. The applicant has continued to receive the benefit of the rental subsidy, the retention of which had been negotiated on his behalf by the FBEU. In all likelihood, if the applicant had taken any steps to alert the respondent to his rejection of the transfer to Parramatta, the respondent would have reconsidered its attitude to the retention of the rental subsidy by him. The applicant, by his action (or inaction) was content to let the respondent remain under the impression that settlement negotiated by the FBEU on the terms reflected in the Deed of Understanding was negotiated on his behalf and with his authority. 2. In Bossak I stated the following: 49 I refer to the Full Bench decision in Caleta Trpimir v Northern Sydney Area Health Service ([1995] NSWIRComm 38). That matter involved an appeal from a decision of a Conciliation Commissioner dismissing the appellant's unfair dismissal application on the basis that a settlement of the appellant's claim had been negotiated by the appellant's union. In its decision the Full Bench (Peterson J, Schmidt J and Patterson CC) stated: The appellant was seeking reinstatement to his former position with continuity of service for all purposes. The agreement reached between the Union and the respondent was that the appellant would be re-employed on the basis of six months probation and without continuity of service. It was the case of the appellant that the agreement entered into between the Union and the respondent was one which he had not authorised and by which he should not be bound. After reviewing the evidence and submissions of the parties, the Full Bench continued as follows: The appellant was a member of the Union who enlisted its assistance in seeking reinstatement. He was represented by the Union in the negotiations it instituted with the respondent over his reinstatement. He had been a Union member for many years, indeed an elected official, the President of the Macquarie Hospital Branch. He remained a member of the Union at the hearing of the appeal. On the evidence there is no basis for the view which the appellant said he had formed that a deal had been done behind his back by the Union and the respondent. The appellant on his own evidence understood the basis upon which he was offered a job on 7 December. He accepted it. Why he did so may perhaps be explained by his stated love of his work, his absolute conviction that the job was 'his' and that he had done nothing wrong. His evidence was that he had in his mind that his discussions with Mr Burton about the matters of concern to him would be 'fruitful'. That the appellant did not succeed in convincing the respondent to restore his sick leave, long service leave and superannuation entitlements may well have been unexpected and a disappointment, but it is clear on the evidence that he understood that those things were not guaranteed if he returned to work on the basis of the offer made. In those circumstances we take the view that it would not do justice between the parties to permit the appellant to renege on the agreement negotiated on his behalf by his Union and understood and accepted by him. In our view it would be unconscionable to permit the appellant to take the benefit of that agreement and to ignore the conditions which were clearly attached to it. The appeal is dismissed. (emphasis added) 50 The facts in the present matter are not on all fours with those in Trpimir. That case involved an application for reinstatement which was settled by acceptance of an offer of re-employment with certain conditions. In the present matter the employment of the applicant had not been terminated. Nevertheless, a dispute had arisen over the terms of the applicant's employment. 51 A settlement of the dispute was negotiated between GSAHS and ASMOF and the applicant expressly agreed to those terms of settlement. He now seeks to renege on that agreement 12 years after the event and claim that he had been victimised by his employer. 52 Borrowing from the Full Bench, "it would not do justice between the parties" and "it would be unconscionable to permit the [applicant] to take the benefit of that agreement and to ignore the conditions which were clearly attached to it". The applicant's claim that the settlement terms to which he agreed 12 years ago constituted victimisation of him, falls precisely within the type of conduct which the Full Bench in Trpimir refused to allow. 1. The facts of the present matter are not on all fours with those in Bossak or Caleta Trpimir v Northern Sydney Area Health Service ([1995] NSWIRComm 38). Nevertheless, there are sufficient points of commonality between those cases and the present matter to warrant a similar approach being adopted in this case. They include: 1. In all three cases there was a dispute about the terms of employment of the employee. In Tripimir the dispute was about his dismissal. 2. In each of the three cases a settlement of the dispute was negotiated by the employee's union with the employer. 3. In each of the three cases the negotiated settlement imparted a benefit to the employee. 1. In Trpimir the dismissed employee was re-employed. 2. In Bossak the employee was retained in employment and paid for periods of time as a Staff Specialist despite having failed to achieve the requisite qualifications for the position he was employed to fill. 3. In the present matter the applicant has retained the rental subsidy. 1. In each of the three cases the employee subsequently attempted to repudiate the terms of the settlement that had been negotiated by their union acting on their behalf. 1. In Trpimir and Bossak the Commission did not allow the employee to repudiate the settlement. I see no reason to adopt a different approach in this matter. However, because of the determination I have made in respect of the out of time issue, I do not propose to make any formal order in relation to this issue. Order 1. I make the following order: 1. The application for relief from victimisation made by Raymond Buchanan pursuant to s 213 of the Industrial Relations Act 1996 is rejected on the basis that it was made out of time and there is no sufficient reason to accept it out of time. John Murphy 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: 19 March 2020