A question from a member of the NSW RFS:
If an issue has dealt with under the RFS grievance policy with no action taken and the person who made complaint agreeing with that outcome, can the person then raise the same matter under the disciplinary policy? Are they allowed to raise issues again that have already been dealt with?
That’s a tough question and the ultimate answer will depend on the facts and the nature of the complaint, but the initial answer has to be ‘no’.
Let’s start with the grievance policy, Service Standard 1.1.3 Grievances (3 October 2008). Paragraph 1.1 says: ‘The purpose of this service standard is to ensure there is a procedure in place where genuine problems, concerns and complaints of all members of the RFS are successfully addressed and resolved within the RFS.’
One might interpret a ‘grievance’ as something in the nature of a personal conflict but that is not necessarily the case. Although what is a ‘grievance’ is not defined it is anticipated that a grievance can involve ‘allegations of serious breaches of discipline, such as misconduct or negligence’. The link with the discipline standard is set out in [2.11]-[2.14]. They say:
2.1.1 The use of the Grievance Service Standard can result in a recommendation that the RFS take action in accordance with Discipline Service Standard.
2.12 However, disciplinary processes are not part of the system to deal with members’ concerns and grievances and any grievance procedures should only deal with matters raised by an individual member.
2.13 The discipline processes should only deal with performance or conduct matters identified by the RFS.
2.14 RFS staff members should also refer to the Premier’s Department Guidelines for Managing Conduct and Performance”.
If there is any doubt as to whether the matter is a grievance or disciplinary matter, some level of investigation should be conducted to establish the facts, so that the best decision to manage the issue can be made.
The discipline standard, Service Standard 1.1.2 Discipline (4 September 2007) deals with allegations of a ‘breach of discipline’ ([2.6]). What is a breach of discipline is defined in the Rural Fires Regulation 2013 (NSW) reg 9. That Regulation says that a member is guilty of a breach of discipline if he or she:
(a) contravenes the [Rural Fires] Act or a provision of this [Rural Fires] Regulation, or
(b) is negligent, careless, inefficient or incompetent in the discharge of his or her duties, or
(c) fails to comply with the Service Standards.
The grievance policy allows members to raise their concerns with the RFS. Those concerns could include issues of personal conflict, issues of policy or practice or issues that constitute a breach of discipline. The policy is not so much about the outcomes but about how, and encouraging members, to raise issues that impact upon the RFS. It would appear from [2.11]-[2.14] that the policy is not meant to be used to deal with issues that constitute a breach of discipline but it is anticipated that the policy may be used to raise issues that are a breach of discipline. So if a member lodges a grievance and it is determined that the matter is a breach of discipline then the process is ‘shifted’ to the disciplinary rather than grievance process.
There is a concept that we lawyers are familiar with called ‘issue estoppel’; that is where a competent tribunal has determined an issue, a subsequent tribunal cannot re-determine the matter or make a ruling inconsistent with the first ruling. That is unlikely to apply to the RFS in a binding way but it should certainly guide decision-making and the requirements for natural justice. Let me try to explain that in more detail.
Assume someone lodges a grievance alleging that another member was ‘negligent’ on the fire ground and exposed other members to danger. That could be seen as an appropriate issue for settlement under the grievance policy and a solution may be to get the members together to each explain what happened. The member may explain his or her decision making process and what they took into account, the person who lodged the grievance may explain what the outcome was and how they thought it was dangerous. All parties may gain information that they weren’t aware of and may learn lessons from the event and the brigade may introduce new measures to make sure it doesn’t’ happen again and in the best of all possible worlds, that learning may be shared with the entire service so all brigades benefit from the ‘lesson learned’.
It would seem ‘unreasonable’ the then raise the matter as a breach of discipline. But it cannot be that it cannot be dealt with as a disciplinary matter. For example, assume that it is resolved and everyone at brigade level is happy, but a more senior officer reviews the matter and is concerned that perhaps there has been a pattern of conduct that the brigade members weren’t aware of, or that the Brigade captain saw the issue as one of internal harmony but didn’t really give sufficient consideration to the needs of the RFS (Grievance policy [1.2]). The senior officer may think this is a matter that needs more formal investigation in order to ‘demote the officer or member’ or ‘disqualify the officer or member from holding rank in the brigade or group’ (Rural Fires Regulation 2013 (NSW) reg 9(3)(c)(i) and (ii)). That senior officer could not be stopped from raising the matter as a disciplinary matter even though it had been resolved. Again, in the best of all possible worlds, the need to escalate the matter should have been identified earlier (Grievance policy [2.11]) but that cannot deny the right of the RFS to take the action it needs to take to protect itself and the community.
I can’t see that there’s anything to stop the same member raising the same issue. He or she may lodge a grievance on the basis that another member’s conduct affected them personally; and then make an allegation of ‘breach of discipline’ on the basis that the conduct also adversely affects the RFS. If the matter has been dealt with under the grievance policy, the disciplinary allegation raises nothing new, and the original decision determined that the matter did not warrant disciplinary action, that may well justify a decision to dismiss the second complaint as ‘vexatious’ that is ‘made without merit and so as to cause inconvenience, upset, annoyance, frustration or worry to the person against whom it is made’ (SOP 1.1.2 – 2 Investigation of Allegations [2.4(b)] and footnote 4.) On the other hand the claim may be sufficiently different on the basis of the impact that it can and should be revisited. It really depends upon the issues in question.
The real complexity is if the allegation is that the member did something that both affected the complainant and could be a breach of discipline, and upon investigation it is determined that the alleged conduct never occurred. One would expect that under the grievance policy there would be some attempt to bring the parties together and explore the facts and reassure the complainant that whatever he or she thought had happened had not occurred. In that case, and certainly if the complainant appears to accept that they were wrong, it would seem to be entirely vexatious to try to raise the same issue under the disciplinary policy.
Dealing with grievances must be ‘complex challenges involved in resolving grievances’ (Grievance policy [1.2]) particularly where the matter can also constitute a breach of discipline. As the policy notes
… grievance procedures should only deal with matters raised by an individual member.
The discipline processes should only deal with performance or conduct matters identified by the RFS. ([2.12] and [2.13])
One matter can affect both individuals and the RFS so there has to be room to deal with it under both. The fact that something has been dealt with as a grievance cannot stop the RFS dealing with it as a disciplinary matter if that is necessary to protect the interest of the RFS and more importantly the safety of the community or other members.
So the answer to the question ‘Are they allowed to raise issues again that have already been dealt with?’ has to be ‘yes, they are allowed to’ but the fact that the matter has already been dealt with is something that the person receiving the disciplinary complaint would take into account in deciding whether or not the complaint is vexatious or warrants further action.