Serious misconduct sparked by flex time dispute

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Serious misconduct sparked by flex time dispute

The NSW Police Force has been ordered to reinstate an employee who lost his temper at work, abused his supervisors and accused colleagues of being 'f***ing bludgers'. Mitigating factors rendered the dismissal unfair.

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The NSW Police Force has been ordered to reinstate an employee who lost his temper at work, abused his supervisors and labelled officers 'a bunch of f***ing bludgers'.

Although a court ruled such conduct could not be tolerated or excused, it found that mitigating factors rendered the dismissal unfair.

Background 


John Fleming was employed as an imaging technician with the Forensic Service Group frm October 2000 until his dismissal in July 2016.

The NSW Police Force alleged Mr Fleming:
  • breached a direction not to work flex time without approval
  • abused and swore at supervisors, and
  • rode his bicycle in a reckless manner on police property. 

Dispute over flex time


At the heart of the alleged misconduct was an ongoing dispute over Mr Fleming's right to work flex time.

The commission heard that on several occasions Mr Fleming became agitated and frustrated when his requests to work flex time were refused.

During one altercation Mr Fleming told his supervising sergeant he was a "lazy f***ing copper", that police were stupid, that he didn't understand how the flex time system worked, and that he was "being picked on and discriminated against".

The next day, Mr Fleming told the same sergeant he was a "dickhead" when the sergeant refused to tell him why he could not work flex time.

As a result of these incidents, he was placed on a Conduct Management Plan.

Ruling    


During proceedings, the employer stated Mr Fleming held the "incorrect" belief that he was entitled to work additional hours simply if work was there to be done.

It did not contend that employees could only work additional hours to accrue flex leave if there was urgent work to be done, which was the position adopted by two of Mr Fleming's supervisors.

Commissioner Murphy said the test in the applicable award was that the supervisor was satisfied work was available and it was convenient to the NSW Police Force for the staff member to work the additional hours. He found lack of convenience had not been given as a reason for refusing Mr Fleming's request to work additional hours; lack of urgency was.

"It is not open to individual supervisors to impose additional arbitrary limitations on an employee’s right to accrue flex leave, such as restricting the working of additional hours to urgent work when a supervisor is present," he said.

"Yet, those limitations were imposed on the applicant by certain of his supervisors in an inconsistent manner. It is little wonder that the flex time issue created a deal of frustration on the part of the applicant."

Mitigating circumstances


Commissioner Murphy also referred to an incident on 7 January, 2016 where Mr Fleming was told he was not permitted to leave the office without supervision to meet another officer off site. 

He said it was understandable Mr Fleming would "react negatively" to being told this after he had already arranged the meeting.

The Commissioner said he should have been advised of this restriction well before 7 January, given that he had been placed on a conduct management plan in November 2015.

Commissioner Murphy also found Mr Fleming's 'reckless' bike riding was not grounds for dismissal. 

After weighing up the mitigating factors, the Commission ruled the dismissal was harsh. 

It ordered Mr Fleming be reinstated to his former position, but make no order for back pay due to the the seriousness of the misconduct.

Fleming v Commissioner of Police [2017] NSWIRComm 1023 (11 May 2017)


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