Victimisation: Fire Brigade Employees Union of NSW v Fire and Rescue NSW 2016] NSWIRComm 1024

The Industrial Relations Commission of New South Wales dismissed an application for relief from victimisation after finding the disciplinary action faced by an employee was not due to his political activity but rather a failure to serve the government in a politically neutral manner.

Captain Challinor was employed by Fire and Rescue NSW and was issued with a formal reprimand after his photograph, name and position at Fire and Rescue NSW appeared in an election pamphlet in support of a candidate.

Captain Challinor believed the reprimand constituted victimisation under section 210 of the Industrial Relations Act 1996 (NSW). This section states, ‘An employer or industrial organisation must not victimise an employee or prospective employee because the person… engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee’s duties)’.

Fire and Rescue NSW claimed the disciplinary action was not in response to his political activity but rather for breaching their code of conduct, in particular by placing himself in a position where his political activity conflicted with his duty to serve the government in a politically neutral manner.

 As a public sector employee, Captain Challinor was required to ‘not engage in activities of a party political nature whilst on duty, nor identify yourself as an employee of Fire and Rescue NSW if doing so’.

Decision

The Commission found that Captain Challinor’s appearance in the pamphlet was intended to represent his endorsement of the candidate. There was no evidence to suggestion Captain Challinor was unaware of his obligations as a public sector employee or under the Code of Conduct.

Furthermore, the Commission found Captain Challinor was not entitled to associate Fire and Rescue NSW with any political activity he engaged in, yet he had done so by including his position in the pamphlet.

Consequently, the Commission found Captain Challinor was disciplined for failing to avoid a conflict between his party political activity and neutrally serving the government. As such, the application was dismissed.

Read the full decision here  

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