The is the second part of a question received from a member of Victoria’s Country Fire Authority (for the first part, see Air Horns on a CFA Appliance (January 20, 2017)).   The relevant questions are set out in bold, below.

One of my brigade members has been suspended as a result of speeding to the station in his private vehicle and complaints from other members about this driving style on the way to jobs. He insists that while driving to the station to respond to alerts he is not answerable to CFA and therefor is not under their control in terms of speed limits etc. My belief is that he is responding as a CFA volunteer and so any directives regarding driving apply. (If he crashed on the way to the station to respond an appliance he would be covered by CFA insurance therefor they have the right to dictate how he should respond.) While he may say “whether I speed or not is up to me and only the police can fine me” it still seems reasonable that if CFA is aware of a member consistently speeding to the station to respond to fires then they have the right to suspend the member from turnouts. Can you clarify this in legal terms?

Related to the actual right of the CFA to take action is the need to grant ‘natural justice’.  I am the brigade delegate to (the) Volunteer Fire Brigades Victoria (association) which purportedly looks after the interests of volunteer brigades. The member detailed in the above called for my assistance. I gave him the advice on who he should talk to about driving and HR issues. Since then I have had a private telephone call from the brigade captain to say that there is no point in the member talking to the people I had recommended as they will not help and that the captain has private channels to ensure that this is the case. This raises the question of ‘is a requirement for natural justice for CFA volunteers?’ There is a disciplinary process called out in the Act and Regulations but it seems that individual brigades and management team can produce their own independent rules which override the regulations. There appears to be nothing to protect individual volunteers from arbitrary justice imposed by “brigade rules”. Is this really the case or do brigades have to comply with some overarching CFA disciplinary process and regulation?

It’s a bit hard to deal with this in detail without access to CFA documents and no doubt they have a relevant code of conduct or ethics.  On this point let me give a public acknowledgment of NSW RFS who put so much of their documentation online (see NSW Rural Fire Service, Service Standards).  I don’t see any reason for agencies not to make this sort of information public but most don’t.  Without reference to any position statement from the CFA this answer will be quite general.

The statement “whether I speed or not is up to me” must be wrong.   The volunteer who receives notice of a fire call and is making his or her way to the station is acting as a member of the CFA.  Consider what would happen if he or she was to crash on the way to the station and cause death or injury?  Everyone, the police, the coroner, the work health and safety inspector and the family of the deceased would want to know what instructions had the CFA given to firefighters to reduce the risk to others.   The CFA has a duty to ensure that its activities don’t pose a risk to people affected by its activities (Occupational Health and Safety Act 2004 (Vic) s 23).  This duty extends to volunteers and others on the road who the volunteer may put at risk when making their way to a fire station.

Further the CFA owes a duty to consider the welfare of its volunteers.  A volunteer who ‘speeds’ to the station, despite instructions not to, is not only putting him or herself at risk of death or injury, they are also putting themselves at risk of legal prosecution.  Their behaviour may well be a symptom that the fire fighter is struggling to cope with or understand his or her duties.  For all those reasons the CFA has a duty to intervene if they are aware of such risk-taking behaviour by someone responding to a call from the CFA.

Finally, to make it clear that the CFA must have an interest, change the facts and ask would the CFA be able to suspend a member who was guilty of murder, or sexual assault, or robbery, or arson or drug dealing?  The argument that ‘I sell drugs in my time, it’s nothing to do with the CFA’ is unlikely to be persuasive to either the CFA, the community or the press.  The CFA must consider whether people are suitable for the work of the CFA and the CFA’s role in the community, so offending even in your own time affects the CFA.

The authority of the CFA is set out in the Country Fire Authority Regulations 2014 (Vic).  Regulation 58 says:

A member who has been charged with an offence punishable by a term of imprisonment may be suspended from membership of the brigade by the Authority until the charge has been determined.

Regulation 58 is not limited to offences committed whilst acting as a member of the CFA.  Whilst ‘speeding’ doesn’t carry a penalty of imprisonment (Road Safety Road Rules 2009 (Vic) r 20), many other road offences do – for example Dangerous Driving (Road Safety Act 1986 (Vic) s 64).

Regulation 44 says:

A member of a brigade is guilty of an offence if the member— …

(d)     commits an act of misconduct; or…

(g)     is guilty of disgraceful or improper conduct.

What is ‘misconduct’ or ‘disgraceful or improper conduct’ is not defined but it would depend on what directions have been given to firefighters. Failing to comply with a policy statement or direction not to drive contrary to the road rules when turning out to the station could well fall within the description of ‘misconduct’.

I therefore agree that ‘if CFA is aware of a member consistently speeding to the station to respond to fires then they have the right [if not a duty] to suspend the member from turnouts’.

There are disciplinary proceedings set out in the Country Fire Authority Regulations 2014 (Vic) ss 44-58.  These provide for the process of investigation matters, suspending members during the period of investigation and ‘charging’ the member with an offence contrary to r 44.  Following an investigation and a decision by a CFA officer to lay a charge, the Chief Officer must hear the matter and determine whether or not the charge is proved.  In conducting the hearing (r 50(4)):

The Chief Officer must—

(a) ensure procedural fairness; and

(b) in making a decision, have regard to the interests of justice and fairness.

Suspension can occur before a decision is made to charge a member – so a member can be suspended during an investigation or whilst issues are dealt with in court (rr 47 and 58).

What follows is that if the formal proceedings are followed there is an obligation to impose natural justice but sometimes the procedures just are not followed – see Natural Justice and the SES (September 28, 2015), which does relate to Victoria SES).   So the question in this case would be has the member be formally suspended or just ‘told’ not to turn out?  In any event he or she can seek advice and it would be wrong for the Captain to use ‘back channels’ to influence that advice but no doubt such things do happen.

The final problem is if there has been a denial of natural justice, what do you do about it?  As my earlier post said:

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.

In Castle v Director General State Emergency Service [2008] NSWCA 231 the NSW Court of Appeal held that the Director-General had to hear from a unit controller before deciding to disband the SES unit and terminate the member’s appointment as unit controller.  That’s all well and good but the court did not that hearing from the member may not change the ultimate outcome, and the member, Mr Castle, did have to take the matter all the way to the Court of Appeal which most people can’t afford and couldn’t be bothered with.

Therefore, in the absence of a tribunal that can resolve the matter (such as VCAT) the right to natural justice may be somewhat hollow.   VCAT would have jurisdiction if the Chief Officer failed to give natural justice when hearing a formal allegation of an offence, but less formal actions, such as those taken with respect to the Bacchus Marsh SES unit may well leave the member without an effective remedy.

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