My friend and colleague, Luke Dam, posted a link to this news story via the Emergency Management Australia LinkedIn group: Angus Thompson, Father and sons SES volunteers lose legal fight over suspension from Bacchus Marsh unit, HeraldSun (Online) 23 September 2015.

The story reports that the Victorian Civil and Administrative Tribunal (VCAT) found that it did not have jurisdiction to review a decision of Victoria SES to suspend four members of the Bacchus Marsh SES unit.   According to the press report ‘VCAT member Anna Dea said the tribunal had no review powers because the men had not been formally suspended.’

The decision the subject of the story is Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402.   In this case there had been a falling out between four members (Mr Raymond Chapman and his sons Daniel and Paul and Mr Brendan Bennet) and the unit leadership team. This had lead to a number of grievances being lodged and meetings held to try and resolve the issues.   On 10 October 2014 Victoria SES appointed an independent investigator to look into the various issues and the unit leadership.    The investigation was to ‘determine if VICSES is able to provide a safe working environment for the members of Bacchus Marsh Unit or if further investigation is required to determine whether charges will be laid against individuals under Part 2-Discipline clause 6 of the Victoria State Emergency Service Regulations 2006.’

On 12 January 2015 the Assistant Chief Officer and Regional Manager – Mid West Region reported on the outcome of the investigation.   In a letter to the Chapman’s, the Assistant Chief Officer (ACO) wrote:

With the depth of ill will, distrust and disrespect that has developed over a period of approximately two years, it is unrealistic to believe the members of Bacchus Marsh Unit can return to a positive and safe working environment whilst you are still attending the Unit. The lack of genuine desire to resolve differences and work together in a positive and collaborative way arises from the openly expressed view of you and your sons that the leadership group is incompetent and should be dismissed, with you and/or others from your group taking over the leadership.

It was reported that the Unit leadership team would remain in place, the four members were expected to:

… interact with the Unit leadership in a manner that is consistent with the organisation’s values and policies, including demonstrating respect for the leadership structure, complying with lawful directions and positively representing the interest of the Unit with the service and the wider community.

At that point one could not say that anyone had been suspended, but the ACO’s letter continued:

Because of the serious nature of the allegations raised about your conduct, and the potentially serious health and safety risks, it is appropriate to advise that you are to return all the VICSES equipment to the Regional Office and cease attending the Bacchus Marsh Unit until such time as the organisation decides the risks to health and safety are eliminated or minimised in accordance with the organisation’s WHS safe working environment responsibilities…

I will arrange a meeting with you … to discuss this matter and also to clarify what would be required for you to demonstrate behavioural change of sufficient magnitude and scope for you to be able to resume duties with the Bacchus Marsh Unit without jeopardising VICSES duty of care to provide a safe working environment for Unit members.

The members’ uniforms and ID’s were collected and a meeting held. According to Mr Chapman said he understood he had been suspended and his membership of the SES terminated; the Assistant Chief Officer (ACO) on the other hand believed there had been a mutually agreed ‘cooling off’ period and the Chapman’s behaviour in other emergency services would be monitored to see if there were behavioural changes that would allow a return to Victoria SES.

Mr Bennett says he was told by the ACO that he was indeed suspended. The four gave evidence that other members of the unit had been informed of their suspension.   There was further correspondence and meetings when Victoria SES officers denied that the members had been suspended.  Eventually the four members applied to VCAT to have the suspension decision reviewed.

The process to suspend a member is set out in Part 2 of the Victoria State Emergency Service Regulations 2006 (Vic). Member Dea of VCAT summarised their effect (at [63]) as:

… the process leading to a suspension (or a reduction in rank) under regulation 18 is lengthy and formal. It requires:

  • A complaint to be made,

  • Notice of the complaint to be given in writing;

  • A decision to lay a charge;

  • Notice of the charge and the hearing arrangements to be given in writing;

  • A hearing to be held before the Authority; and

  • The Authority to decide that the charge has been substantiated.

Where a suspension is imposed under r 18, a member had the right to seek a review of that decision at VCAT (Victoria State Emergency Service Regulations 2006 (Vic) r 21).  Member Dea found that there was no action taken under Part 2 and therefore no decision for VCAT to review under regulation 21.

Discussion

This outcome seems very unsatisfactory. The members were told that they could not continue attending the SES unit.   In the opinion of Member Dea ([46]-[47]):

… it seems to me, applying the ordinary meaning of suspension, that it might be said that the applicants were suspended. That meaning includes action causing something to cease or bring to a stop or action causing a cessation, for a time, of the operation of a privilege or the like or the exercise of the enjoyment of a privilege.

The applicants were told not to attend the Unit. Their uniforms and other necessary items had been removed. Their intranet access appears to have been removed or changed. While it is correct to say the 12 January 2015 letters required them to attend a meeting, for the Chapmans that letter and subsequent correspondence made it plain that they would not be expected to return to the Unit for 12 months to allow time for the processes and steps outlined in the letter to be completed. There was a requirement to demonstrate behavioural change to VICSES and apparently produce references or be subject to checks before returning. In my opinion, relying on the material described above and taking the applicants’ cases at their highest, it is arguable that those circumstances are consistent with the ordinary meaning of suspension.

This suspension was not, however, made under Regulation 18. So how was it made? The ACO had no power to suspend a member (see [58]-[62]). At [69]-[70] Member Dea says (emphasis added):

It is clear that at the time the investigation commenced and the 12 January 2015 letter was written, ACO Warren and Ms Bahen had in mind concerns about providing a safe place in which the leadership and members could operate and only the possibility that charges or other disciplinary processes may be called for.

Despite the lack of clarity about the basis for the actions taken, I am satisfied on the documents produced by the applicants, that the investigation being undertaken and the identification of outcomes set out in the 12 January 2015 letter were preliminary to the processes described in Part 2 of the regulations. There is nothing to suggest that ACO Warren thought he had the delegated powers of the Authority under regulation 18 or the COO under Part 2 of the regulations.

What follows is:

  1. The members were suspended;
  2. The power to suspend lies in regulation 18;
  3. The ACO did not believe that he was exercising that power;
  4. There was a ‘lack of clarity’ for the basis for the various actions taken;
  5. But because it wasn’t explicitly under regulation 18 the VCAT had no jurisdiction.

It’s a shame that having found that the members were suspended and that the suspension was not made under r 18 Member Dea did not have the jurisdiction to declare the decision invalid; but that was not her jurisdiction. Her jurisdiction was limited to reviewing a decision made or purported to made under r 18.   While she accepted ‘… the applicants wish to have the circumstances discussed above reviewed by this tribunal given it is likely to be speedier and less costly than possible alternatives’ ([73]) she did not have the power or jurisdiction to grant that wish. As she said (at [49]) ‘As a creature of statute, the tribunal only has the powers it is granted through the VCAT Act or under another enactment.’   If VCAT could only review a decision made under regulation 18 and this action was not, and not intended to be made under that Regulation, then VCAT was not the right tribunal. But that did not mean the application was without merit.

Although VICSES were successful Member Dea refused to order that the four members pay the SES’ costs.   She said (at [80]-[81]):

While I have concluded that the applicants have no right of review to this tribunal because no decision was made under regulation 18, I do not accept that the proceedings have been brought frivolously or vexatiously. I accept the applicants’ position that, prior to and since they received the 12 January 2015 letters, they have sought an explanation from VICSES about the power it relied on for its actions and have sought a means to resolve the underlying dispute.

While it might have been preferable for the applicants to seek legal advice before commencing and continuing with these proceedings, legal representation is not a prerequisite for commencing proceedings in this tribunal…

Had the parties sought legal advice they may have been advised that their only remedy lay with the Supreme Court rather than the cheaper and more informal VCAT.

What follows is:

  • If VICSES seek to discipline a member under regulation 18, the member can seek a review of that decision at VCAT;
  • If, on the other hand, a senior officer of VICSES takes action against a member that he or she is not authorised to take, without being fully aware of the powers he or she is exercising or being unable to explain the authority that he or she thinks is being exercised and in effect imposes a suspension (even if they don’t believe that is what they are doing) the member is left without an effective, independent remedy. They would no doubt have a remedy relying on the ‘chain of command’ but as these members had been told that senior officers would no longer accept a grievance from them (see [10]) that was not going to provide an effective review. For a decision that is made beyond power the applicants would have had to go before a court, probably the Victorian Supreme Court.

(For a similar conclusion, this time involving Queensland SES see Gilmour v The State of Queensland represented by Queensland Fire and Emergency Services [2014] QCAT 70 where the Queensland Civil and Administrative Tribunal (QCAT) also found that it ‘only has jurisdiction to review a decision in circumstances where an enabling Act provides for the review’. In that case there was no equivalent to the Victorian regulation 21 and the applicant could point to no Act or regulation that would allow the QCAT to review a decision to suspend his membership of the SES).

Conclusion

This decision may be an interesting analysis of the jurisdiction of VCAT but it must be an unsatisfactory outcome for VICSES and its members. Whilst this one case is a ‘win’ for VICSES it was a win simply because the applicants commenced their action in the wrong tribunal.   In the longer term, a result that says ‘a decision made without authority cannot be easily reviewed’ may encourage some people to act without authority rather than try to comply with the regulations with the added inconvenience of VCAT review.