RFS Volunteer Fire Fighter Discipline Procedures in Need of Reform

This article was originally published in the VFFA magazine, Winter 2011 edition.

The VFFA understands that all rural fire fighting agencies in Australia have internal volunteer grievance and discipline procedures.

The VFFA is concerned that in NSW volunteer rural fire-fighters who are subject to disciplinary action and who lodge grievances against paid staff have no option than to place faith in a system that is owned, controlled and arbitrated by the RFS.

Under the NSW Rural Fires Regulation 1997 a member of a rural fire brigade can be guilty of a breach of discipline if they are negligent, careless, inefficient or incompetent in the discharge of their duties. Hence the grounds for bringing discipline charges against a volunteer rural fire fighter are very broad, poorly defined and wide open to interpretation.

The prevailing concern for many volunteer rural fire-fighters is the knowledge that they can be subject to disciplinary action for simply speaking out publically against the RFS and RFS policy.

The RFS Service Standard 1.1.2 Discipline, dictates that proceedings are managed initially at brigade level with provisions to escalate discipline proceedings to volunteer discipline committees at the District level and to the RFS head office at State level. Under the service standard there is requirement for district discipline committees to have formal training in disciplinary matters. The service standard requires that committee members are provided with guidance and support by RFS District Manager.

Grievances lodged by volunteer fire-fighters against RFS staff are managed at District level with provisions for escalation to the Region and State level of the RFS.

Volunteers rural fire fighters subject to adverse discipline findings under the current service standard may be suspended, demoted or have their membership of the RFS terminated. Volunteer rural fire-fighters subject to an unfavourable discipline finding may seek a review of a discipline decision made at the District level by the RFS District Manager and appeal an unfavourable discipline finding to the RFS Commissioner. The appeal decision of the RFS Commissioner is final.

An unfavourable discipline finding against a volunteer rural fighter has the potential to harm their personal reputation, integrity and psychological wellbeing particularly if it involves suspension and dismissal from the RFS.

Given the serious nature of disciplinary matters and the potential personal consequences for volunteers, their reputation, integrity and future membership of the RFS, it is imperative that volunteer rural fighters are afforded support services available to full time fire-fighters employed by Fire and Rescue NSW (NSW Fire Brigades) to ensure they are afforded procedural fairness, natural justice and a proper defence.

The VFFA have identified several issues with the volunteer rural fire fighter disciplinary and grievance procedures in NSW that are in need of reform:

1. Volunteer rural fire-fighters have no access to an independent industrial officer where they can go to seek assistance, legal advice and representation.
   1. The VFFA is concerned that under the present system volunteer rural fire-fighters, without the support of a trained industrial officer (independent of the RFS) are vulnerable to self-incrimination and prejudicing their defence in disciplinary proceedings brought against them by the RFS.
2. A volunteer rural fire fighter’s only right of appeal against an unfavourable discipline finding is to the RFS Commissioner. The decision of the RFS Commissioner is final.
   1. The VFFA is concerned that there is no third party right of appeal to an independent body with a volunteer charter (external to the RFS bureaucracy) to review:
      1. an unfavourable discipline finding against a volunteer rural fire fighter.
      2. a favourable discipline finding towards paid staff.
      3. the evidence, case management, rationale for the decision and fairness, partiality, equity and natural justice in the proceedings.
3. Grievances lodged against paid operational staff at District, Zone and Team level are adjudicated by senior operations staff at Region and State level.
   1. The VFFA is concerned about the independence in a process where senior management within the operations section of the RFS manages and adjudicates grievances brought by volunteer rural fire-fighters against its own operational staff.
4. The training, qualifications and experience of volunteers presiding on district discipline committees.
   1. The VFFA is concerned that there is no requirement in the RFS service standards for volunteers on district discipline committees to have training in mediation, conflict resolution, negotiation, arbitration and conciliation.
5. The training, qualifications and experience of paid RFS operations staff engaged in the case management of grievances brought by volunteers against paid RFS staff.
   1. The VFFA remains unclear whether paid RFS operations staff possess appropriate training, qualifications, expertise and relevant industry experience in conflict resolution, mediation, negotiation, arbitration, conciliation and the principles of collaborative law.

Recommendations

The VFFA makes several recommendations to improve the rights of volunteer fire fighters subject to disciplinary charges brought by the RFS.

1. Volunteer rural fire-fighters subject to disciplinary charges be afforded the same level of support services available to full time fire fighters employed by the Fire and Rescue NSW. This includes access to assistance, legal advice and representation by a professional industrial officer (or volunteer advocate), who is independent of the RFS.
   1. It is envisaged that the provision of professional industrial support services to volunteer rural fire-fighters would be funded by the state government , and contracted to an external accredited provider.
2. Mandatory training is provided to all volunteers who participate on district disciplinary committees in mediation, conflict resolution, negotiation arbitration and conciliation and principals of collaborative law.
3. RFS staff who case manage and adjudicate on discipline and grievances involving volunteers and paid staff have appropriate training and experience in mediation, conflict resolution, negotiation arbitration and conciliation and principals of collaborative law.
4. Discipline and grievances that escalate to the RFS are case managed by an internal integrity unit that is fully independent of the operational arm of the RFS and reports directly to the RFS Commissioner.
5. Provision is made for a volunteers to be granted the right to a third party appeal to an independent body (external to the RFS) with a volunteer charter to review & audit:
   1. Unfavourable discipline findings against volunteer rural firefighters involving serious punitive action i.e. suspension and dismissal.
   2. Favourable discipline findings for matters involving serious grievance and discipline allegations made by volunteer rural fire-fighters against paid staff.
   3. Any aspect of the disciplinary process and resolution
6. The decision of the independent body must have the powers and authority to impose legally binding decisions on the RFS.
   1. Existing organisations that could provide an independent third party review & audit of volunteer discipline and grievance matters include:
      1. NSW Industrial Relations Commission
      2. NSW Ombudsman
      3. NSW Community Justice Centres
      4. Australian Human Rights Commission
7. Consideration be given to establishing an independent volunteer tribunal to operate on a needs basis within the existing NSW government framework for industrial relations, similar in concept to the NSW residential tenancy tribunal with the terms of reference of the tribunal extended to all emergency service volunteer organisations in NSW.
8. RFS volunteer fire-fighters subject to discipline procedures or involved directly in the disciplinary proceedings are afforded the right to lodge formal complaints with the volunteer tribunal if they believe natural justice or procedural fairness has not been followed or if they have reasonable grounds to believe they have been subject to discrimination during an RFS disciplinary hearing and determination.

Summary

In summary the VFFA believes the NSW RFS Discipline service standard does not afford sufficient rights, support and advocacy for rank and file volunteers subject to disciplinary action. The VFFA believes that the current discipline service standard is in need of serious reform to ensure the rights of volunteers subject to disciplinary charges by the RFS are protected and enshrined in legislation i.e. the Rural Fires Regulation.