This case, from the NSW Supreme Court, is a valuable lesson to the emergency services, in this case NSW Fire and Rescue, about the rule of law.

The applicant, Huggins, was involved in a fight with a colleague at a fire station.  There were clearly issues about who started the brawl and whether or not the actions of the applicant were reasonable.  An Assistant Commissioner decided to take disciplinary action and the firefighter was suspended, with pay, pending the outcome of the proceedings.

The Fire Brigades Regulation 2008 (NSW) contain detailed provision on how allegations of misconduct are to be dealt with (see regulations 34-48).  A critical concept, in this case, was the role of the ‘nominated officer’ that is an officer nominated by the Commissioner for the purposes of the regulations.  The nominated officer was an Acting Deputy Commissioner.  The nominated officer has a number of duties, and powers, under the regulations.  Regulation 43 says

If the nominated officer considers (as a result of a preliminary inquiry or otherwise) that action should be taken against a firefighter in respect of a complaint of misconduct, the nominated officer may charge the firefighter with the alleged misconduct.

That happened and firefighter Huggins was charged with misconduct.  Where a firefighter is charged with misconduct he may either admit, or deny, the allegation.  Firefighter Huggins denied the allegation.  Regulation 44 says

If the firefighter denies the charge or does not admit or deny the charge within 10 calendar days after being served with a copy of it, the nominated officer is to conduct, or direct another officer to conduct, a formal inquiry under this clause. (Emphasis added).

In this case the nominated officer directed another officer, an Assistant Commissioner, to conduct the inquiry.  Regulation 45 sets out what happens after an inquiry and is set out in full below:

45 Formal inquiry report

(1) An officer conducting an inquiry at the direction of the nominated officer must cause a report of the officer’s findings and recommendations, together with the transcript of the proceedings and any document or thing admitted in evidence, to be sent to the nominated officer.

(2) The nominated officer may make further recommendations concerning the findings of the inquiry and must inform the defendant of all recommendations made.

(3) The nominated officer must cause the report of the findings of a formal inquiry, together with any associated recommendations, transcripts or evidence, to be sent to the Commissioner.

(4) Written submissions (including submissions in mitigation of penalty) may be made to the Commissioner, by or on behalf of the defendant, within such time as the Commissioner allows.

(5) If the defendant is found not guilty of misconduct, the nominated officer must terminate any suspension of the defendant immediately.

The Assistant Commissioner conducting the inquiry found that the allegation was not proved, that is firefighter Huggins was NOT GUILTY of misconduct.  He prepared a report and sent that to the Acting Deputy Commissioner, that is the ‘nominated officer’.  The nominated officer made ‘further recommendations’ in accordance with clause 45(2).  His recommendation was that the inquiry officer was wrong, that firefighter Huggins was guilty of misconduct and that Commussioner Mullins should take disciplinary action against the firefighter.  At that point firefighter Huggins approached the Supreme Court arguing that the nominated officer could not make those comments, that Commissioner Mullins could take no action and that the nominated officer had to act under Regulation 45(5) which says: ‘If the defendant is found not guilty of misconduct, the nominated officer must terminate any suspension of the defendant immediately.’

Harrison J, sitting as the Supreme Court, agreed with nearly all of firefighter Huggins’ submissions.  The firefighter had argued that, given the finding that he was not guilty, there could be no comment made under regulation 45(2) above.  Harrison J disagreed with that submission, he said that making further comment was not limited to cases where the firefighter was found guilty of misconduct:

The submission fails to take account of the possibility that the nominated officer … may have wished, in the case of a finding of not guilty, to recommend that the Commissioner take some action favourable to the firefighter concerned. (Huggins v Mullins [2011] NSWSC 1123, [24]).

In all other respects however, the firefighter’s submissions were upheld.  When the inquiry officer reported that he found the firefighter not guilty, the only option open to the nominated officer was to remove the firefighter’s suspension (regulation 45(5)).  The finding of ‘not guilty’ was sacrosanct and there was no power for the nominated officer to substitute his own opinion for that of the inquiry officer:

… the role of the nominated officer is one that is limited to making “further recommendations concerning the findings of the [formal] inquiry”. He is nowhere empowered to make a different finding even though he can make recommendations concerning the findings. The nominated officer cannot substitute his or her own finding as to whether the firefighter is or is not guilty of misconduct. That power or task is singularly and conspicuously assigned to the officer conducting the formal inquiry at the direction of the nominated officer. The report is unambiguously described as “a report of the officer’s findings and recommendations”: clause 45(1). There is no provision, and hence no power, for the nominated officer to substitute his or her “findings” for those of the officer conducting the formal inquiry. (Huggins v Mullins [2011] NSWSC 1123, [22]).

Where an inquiry officer finds a firefighter guilty of misconduct the matter is referred to the Commissioner.  Regulation 46 says what the Commissioner can do. Regulation 46(1) says ‘The Commissioner, after considering a report in which a firefighter is found guilty of misconduct and any submission made by or on behalf of the firefighter, may deal with the matter in any one or more of the following ways…’ after which a number of penalties are set out.  But the clear power arises only where the Commissioner has considered ‘a report in which a firefighter is found guilty of misconduct’.  In this case there was no such report, the only report found the firefighter not guilty of misconduct.  Despite the Acting Deputy Commissioner’s view that the firefighter was guilty, there was no inquiry report to that effect and so there was no ‘provision empowering the Commissioner to substitute a finding of misconduct where the inquiry officer has made a finding that the firefighter is not guilty’ (Huggins v Mullins [2011] NSWSC 1123, [22]) and no provision that would allow the Commissioner to accede to the Acting Deputy Commissioner’s suggestion and take disciplinary action.

Legal lessons

The rule of law applies in NSW Fire and Rescue as it does across the community.  The power to discipline is set out in the regulations and those regulations must be followed.  They envisage a scheme of formal inquiries and it is the inquiry officer, and only the inquiry officer, that determines guilt or otherwise.  The nominated officer could have held the inquiry (but not if he had pre-judged the matter) or could, as happened here, nominate another officer to carry out the inquiry.  Having appointed an inquiry officer the nominated officer had no power to substitute his own decision when he disagreed with the finding of the inquiry officer.  To allow that would be akin to allowing the police to take action against a citizen because they disagreed with a court’s acquittal.   A person, in this case the inquiry officer, was required to investigate and determine the matter; it was up to that officer and that officer alone, to determine the matter.  Having found the firefighter Not Guilty that had to be the end of the matter.  Not only was he entitled to be returned to duty, the nominated officer was required or obliged to remove his suspension.  There was no option or discretion to be exercised.

Officers who have responsibilities and duties imposed by law, in this case by the Fire Brigades Regulation 2008 (NSW) must make sure they know the Regulations and understand that it is the Regulation that gives them their authority and defines the scope of their power, they are not ‘guidelines’ or suggestions, they are mandatory and must be followed, even if you do not like the outcome.

Michael Eburn
1 October 2011