The Acting Premier of NSW has signed an order under the State Emergency and Rescue Management Act 1989 (NSW) declaring that the provisions of Part 3A of the Act apply to the current fire emergency.  The effect of this order is that an employer commits an offence if they victimise any employee who has turned out as a volunteer (s 60B) with the NSW Rural Fire Service, NSW State Emergency Service, Fire and Rescue NSW, Ambulance Service of NSW and the NSW V0lunteer Rescue Association.

To victimise an employee means to:

(a) dismisses the employee;

(b) alter the terms of the employee’s employment in a way that unfavourable to the employee; or

(c) otherwise ‘injure’ the employee in his or her employment (s 60C).

Taking part in the emergency operations includes ‘travel to or from the place where emergency operations are being carried out, being on standby at or near that place and rest during those operations (in accordance with arrangements made with an emergency services organisation) …’ (s 60G).

If an employee’s employment is affected, and if it is alleged that this was due to their turning out for the emergency, then the employer has the burden of proving that the changed employment was not due to the employee’s volunteering (s 60).  That does not mean all the employee or Crown has to do is allege victimisation.  The Crown has to prove all the elements of the offence, that is that the employee was a volunteer, that they were taking part in emergency operations (which can be proved by a certificate from the relevant emergency service (s 60H)) and that one of the things that constitute victimisation has occurred   Then, and only then, does the burden fall onto the employer to prove that the ‘victimisation’ was due to reasons other than the employees volunteering.

Offences are prosecuted in the Local Court (s 66) and beside punishing the employer, the Court can make a number of orders to restore the persons employment to to require the employer to pay any lost income (s 60F).

Anyone who, on returning to work in NSW, thinks they have been victimised by their employer as a result of their volunteer duties, should contact, in the first instance, the service for which they volunteered.  Ultimately the issue of whether or not victimisation can be proved will be a matter for the police.  The emergency service could, if it decided to, launch a ‘private prosecution’ on behalf of the volunteer, but I suspect that would be unlikely.

Michael Eburn

9 January 2013