A New South Wales police employee who was sacked for telling striking rail workers “get back to work you bludgers” and pushing a barricade towards them has had his job reinstated.
The employee, John Fleming, said he was frustrated when he walked past rail workers who were “sitting outside at a cafe drinking coffee and … having a laugh and enjoying themselves because of the inconvenience they were causing me and other rail commuters” in February last year.
He told the NSW Industrial Relation Commission, according to a decision published on Wednesday, that as he walked past them he said something along the lines of “get back to work you bludgers” and some of them responded.
Fleming then lunged at a barrier outside the cafe, pushing it towards the men.
“There was no malice in my action and I had no intention of assaulting anyone,” he said in a statement to the commission.
“It was just a frustrated and instinctive reaction to their comments.”
One of the men said the barrier struck him in the shoulder and reported the incident to police.
Fleming, who had worked for more than 20 years as an imaging technician at the Sydney police centre, was identified on CCTV footage of the incident.
In July last year, he was issued a $500 fine for offensive behaviour, which he did not contest.
He was informed by police two weeks later that the incident was also being investigated as a possible breach of misconduct, and was dismissed last December.
Fleming appealed the decision to the commission, who found he should be reinstated as his dismissal was harsh and a disproportionate response to the misconduct.
Fleming said in his submissions that his frustration had been caused by having to walk more than 4km because of the industrial action.
“I felt marooned at an early time of the morning, with trains not going and no buses,” he said. “Having no other means of getting to work, I began to walk.
“I was carrying a full backpack, which contained work clothes, lunches for two days, small bottle of milk, about three pieces of fruit, personal items such as hankies, [a] comb and wallet, resistant bands for physiotherapy, spectacles and their case and possibly a towel because every alternate week I pack a clean towel. I also was carrying an umbrella.”
NSW police argued the dismissal was justified as the misconduct was “objectively serious”, though not “the crime of the century”, Fleming’s response to the investigation did not demonstrate contrition or insight and he had previously behaved similarly.
The commission heard he was also dismissed from the NSW police in 2016 after abusing two sergeants in separate incidents.
During those incidents, he called one officer a dickhead and said to another “you’re just a lazy fucking copper like the rest of them” and “I hate all police! It’s no wonder that everyone hates police!”
The commission ordered in 2017 that Fleming should also be reinstated after those incidents.
Commissioner Janine Webster said in the recent decision that it was appropriate Fleming be issued a final warning by NSW police over his behaviour and “take such other management action it deems appropriate to address and improve the applicant’s underlying behavioural issues”.
“Given the misconduct by the applicant, I have decided, in my discretion, not to order any back pay to him,” she said.
“This will serve as a deterrent to the applicant to not engage in future misconduct in the workplace.”
