This question comes from a volunteer with Victoria’s CFA. My correspondent tells me:
I’m a CFA volunteer and I’m currently suspended by the Chief Officer pending cancellation of my membership. I’ve not been charged or been provided with any complaint against me as is required under CFA regulations and dispute resolution; however, I’ve been suspended since November 2016. I believe this contravenes r44 and subsequent regulations of S.R. No. 165/2014. Any advice would be appreciated.
Suspension of members of the CFA is dealt with by the Country Fire Authority Regulations 2014 (Vic) r 47. This regulation anticipates that a member may be suspended pending both an investigation and final resolution of the allegation. The regulation says:
(1) At any time before the Chief Officer has caused an investigation to be conducted under regulation 46(1), the Chief Officer or an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until the investigation report concerning the member has been given under regulation 46(2).
(2) At any time after the Chief Officer has caused an investigation to be conducted under regulation 46(1), an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until—
(a) the time for the laying of a charge under regulation 48(2) has expired; or
(b) if a charge is laid, the charge has been dismissed or found proven in accordance with regulation 49(3); or
(c) if an appeal has been made to the Appeal Panel, the chairperson of the Authority has given the appellant written notice of the Appeal Panel’s determination.
Under regulation 46(1) the Chief Officer may appoint someone to conduct an investigation and that investigation must be completed by the investigation ‘as soon as practicable after commencing an investigation’ (r 46(2)). That is a very vague time frame and note that the time doesn’t ‘run’ until after the investigation is commenced, not from the time the member is suspended. Regulation 46 sets no time limit to say when an investigation must be commenced if a member has been suspended. So prima facie, the Chief Officer could suspend a member under r 47 but then wait some significant time before directing an investigation to be commenced under r 46.
Once a written report of an investigation has been received, the member must be charged within 30 days, or not more than 60 days if the Chief Officer so determines (r 48).
My correspondent has been suspended since November 2016. I do not know if the Chief Officer has instigated an investigation under r 46. If he has, that investigation must be completed ‘as soon as practicable’. There is then 30 days (or up to 60 days) before a charge must be laid. Given that it’s now the end of January 2017 one might think that the fact that no charge has yet been laid is, of itself, not contrary to the regulations. Given that between November and January there has been the Christmas and New Year break, it might be reasonable that no investigation has been completed and even if it has, the time frame for laying a charge won’t have passed.
The bigger issue is if the suspension has been put in place but no further action has been taken, eg no investigation commenced, because in those circumstances the members position can remain uncertain and in effect subject to punishment (suspension) without due process. The point of allowing suspension pending investigation is to protect the community and the CFA but not to allow the Chief Officer to impose a punishment by, for example, suspending a member without due process and thereby in effect dismiss them from the CFA without regard to the rules on disciplinary hearings.
The crucial question then is what has been happening since November. If the Chief Officer has appointed an investigator and the investigator is attending to his or her duties with due diligence, the current time frame is probably unobjectionable. If nothing has happened one would infer that some ulterior motive is being pursued.
What’s the remedy? To determine the matter would require access to documents and internal records. If my correspondent is aware that an investigation is in place, eg he or she may have been advised who the investigating officer is, they may have been interviewed and know other people who have been etc, then one might think the process is under way. If on the other hand there is no evidence that an investigation has been commenced it would be appropriate to seek independent legal advice (not from a public blog/commentary) but from a solicitor who can take the matter up with the Chief Officer. An alternative source of support may be the VFBV but I don’t know if they get involved in these sorts of quasi-industrial issues.