I originally made this post on July 14 2017. When writing the post I was responding to a question from a volunteer with Victoria’s Country Fire Authority. My correspondent told me that:
The brigade executive has written to all members asking them to confirm their desire to remain in the brigade. The letter says: ‘If we do not hear from you, we may have to assume that you no longer wish to be a member of […] Fire Brigade.” Minutes of a brigade meeting note “Leave of Absence: People not attending meetings, training etc. for a period of three months or more require approval by OM …”
I was asked to advise:
- Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone; and
- What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?
My original answer was wrong
In my original response (that is set out at the end of this post) I concluded that ‘Subject to the terms of any specific brigade rules, the only power to cancel a person’s membership of the CFA lies with the CFA and only if a member is convicted of an offence under the CFA Regulations (not just a criminal offence).
After posting my original answer, a correspondent, Tony Knight, wrote to me and pointed out that I had missed s 23(1)(d) of the Country Fire Authority Act 1958 (Vic). He was right; I had, and that section makes all the difference. It means that the conclusion, above, was wrong.
Before I deal with s 23(1)(d), let me say that I have left my original answer, below, because I hope it maintains the integrity of my blog to admit when I get it wrong (see also, for example:
- Is a dangerous goods placard required for an ambulance? (May 12, 2015).
I also hope it encourages people: if you think I am wrong, get in touch and let me know why. With ongoing debate we’ll come to a ‘correct’ answer – see for example the discussion that followed the post Lights and sirens for St John (NSW) – amended (March 23, 2016).
I also hope it helps meet the blog’s educative purposes by showing the process of legal thinking and how small things can make a big difference.
To return to the questions asked
Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone[?]
The Country Fire Authority Act 1958 (Vic) s 23(1)(d) says, relevantly:
The [Country Fire] Authority may at any time and from time to time— …
(d) … cancel … the enrolment of any officer or member of any brigade;
The section does not give, nor require, any specific grounds before the Authority takes that action.
Another correspondent wrote and said
… I do not have access to the paperwork … however I do recall internal management paperwork that laid out the process of having someone’s membership terminated. There were steps to contact the person, timeframes for letters and then the secretary applied to the authority to have them removed. A long process with a lot of steps to contract the member and allow all possible attempts to seek clarification as to why they were not attending.
Like that correspondent I, too, don’t have access to the paperwork or internal CFA policy documents but I will assume, for the argument, that the description given above is correct. It would make sense to think that an organisation like the CFA does have a process to terminate a person’s membership if the member is not taking an active part in the work of the CFA. No organisation wants to have members ‘on the books’ who are not effective members.
One would also expect that an organisation like the CFA would have in place processes to ensure that a member had every opportunity to respond before their membership was cancelled (but on the obligation to provide ‘natural justice’ see Natural justice in, and the jurisdiction of, the CFA (January 21, 2017) and the other posts that are referred to there).
That then brings me to the questions asked –
Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone;
The CFA can ‘at any time … cancel … the enrolment of any officer or member of any brigade’ and presumably for any reason. Having a letter in the terms suggested may be ‘inelegant’ – it may be better to rephrase it as asking the member to ‘show cause’ why they should not be removed or some such, but whatever wording is used is likely to offend someone. In essence however, it seems to me that the CFA is and must be able to cancel the enrolment of a member who is not an active or efficient member. And one has to have a process that allows that to happen even if the member cannot be contacted either because they have moved or they simply refuse to engage in correspondence with the CFA.
There could be arguments that any action, in any given case, was not properly taken, was done in bad faith or was a denial of natural justice. Those arguments will be harder to make if indeed there is a ‘process of having someone’s membership terminated’ and that process has been followed.
It follows that my answer to question 1 is now ‘in principle, yes – but whether the particular letter issued in this case is sufficient depends on CFA internal policies and procedures which I can’t access and therefore cannot comment on’.
Question 2 was:
What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?
It is still the case that the Act says that regulations may be made with respect to granting leave of absence to volunteers (Country Fire Authority Act 1958 (Vic) s 110(1)(ca)) and that no regulations have been made.
The Country Fire Authority Act 1958 (Vic) s 27 says ‘Subject to the general powers and directions of the Authority every brigade or group of brigades and all officers and members of brigades or group of brigades shall be under the order and control of the Chief Officer.’
It is axiomatic that the Authority, and brigades, need to be able to manage their response to any fire or emergency and to do that they need to know in general terms who is available. Of course it is understood that with a volunteer brigade on any given day some volunteers won’t be able to make it but if someone is going to be absent for a period the brigade, and the CFA, would have a legitimate interest in knowing that. Further, if relying on s 27 the CFA and/or the Chief Officer has set minimum attendance and training requirements (see also Country Fire Authority Regulations 2014 (Vic) r 43) then they may require that a member is ‘excused’ if they are not going to meet those requirements. If they fail to do meet the requirements without leave, then no doubt action could be taken to cancel their membership (s 23(1)(d)).
It follows that my answer to question 2 is now ‘it depends on CFA internal policies and procedures which I can’t access. In principle however, the CFA could impose attendance and other requirements that a member must meet or risk their membership, and equally the CFA could have in place policies and procedures to allow, and require, members to seek approved leave if they are not able to meet those requirements for a period of time’.
Conclusion
My answers to the questions asked are now:
Question 1: Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone.
Answer 1: In principle, yes – but whether the particular letter issued in this case is sufficient depends on CFA internal policies and procedures which I can’t access and therefore cannot comment on.
Question 2: What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?
Answer 2: It depends on CFA internal policies and procedures which I can’t access. In principle however, the CFA could impose attendance and other requirements that a member must meet or risk their membership, and equally the CFA could have in place policies and procedures to allow, and require, members to seek approved leave if they are not able to meet those requirements for a period of time.
My original answer
Today’s question comes from a CFA volunteer. Unfortunately, there are issues between members of the Brigade with the result that some members are not attending meetings or training. The brigade executive has written to all members asking them to confirm their desire to remain in the brigade. The letter says: ‘If we do not hear from you, we may have to assume that you no longer wish to be a member of […] Fire Brigade.” Minutes of a brigade meeting note “Leave of Absence: People not attending meetings, training etc. for a period of three months or more require approval by OM …”
My correspondent asks me to advise:
- Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone; and
- What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?
I have confirmed that ‘OM’ means the Operations Manager who is the head of a District. It is a paid, full time CFA staff position.
I do not want to get involved in a brigade dispute, so before answering this question I did write to my correspondent and say:
Providing advice on specific issues raises issues of my professional responsibilities, carries a professional risk and so carries a professional fee. To avoid that, I answers questions on the public forum that is my blog. Everyone can see what I wrote and I’m not advising one side or the other.
I make no comment one way or the other on what may, or may not, be happening in the brigade in question or who is or is not ‘in the right’. What follows is merely my analysis of the relevant legislation and not the merits of the competing claims.
The model of the CFA, as set out in the Country Fire Authority Regulations 2014 (Vic) is that a group of people form a brigade and then apply to the CFA to be registered as a brigade (r 30). A brigade may adopt its own internal rules (r 33). If the brigade does not adopt rules, the rules set out in Schedule 2 govern the brigade’s internal management. My correspondent has not provided me with brigade rules, and if he or she did reference to them may identify the brigade for others, so I will answer this question on the assumption that the rules set out in Schedule 2 are the relevant brigade rules.
A person is a member of a CFA brigade only if they enrolled by the CFA as a member of that brigade (r 37). A member of a brigade ‘must comply with the training requirements determined by the Authority’ (r 43). I am unable to determine if the CFA has published any such requirements. The Schedule 2 rules don’t provide details of minimum attendance or training. They do provide that the ‘brigade may … appoint a management team to manage and administer the affairs of the brigade.’
In terms of discipline the regulations do provide for a number of ‘offences’. There are procedures to investigate an allegation that a member has committed an offence. Where an offence is proved the ultimate sanction is that the brigade can recommend to the CFA ‘that that the enrolment of the member be cancelled’ (r 45). A member commits an offence if he or she, inter alia (r 44):
…
(d) commits an act of misconduct; or
(e) is negligent in the discharge of the member’s duties; or
(f) is inefficient or incompetent and the inefficiency or incompetence arises from causes within the member’s control; or
(g) is guilty of disgraceful or improper conduct.
Under the Country Fire Authority Act 1958 (Vic) s 110(1)(ca), regulations can be made ‘for the granting of leave of absence to volunteer officers and members of brigades’. The issue of leave is not however mentioned in the Country Fire Authority Regulations 2014 (Vic) so it appears that no regulations have been made with respect to leave.
Discussion
Unless the Brigades rules or the CFA’s published ‘training requirements’ impose minimum attendance requirements upon a member I can’t see that not responding to a letter could imply that a member does not want to be part of the brigade.
That result is somewhat surprising. Before looking at the Act and Regulations one assumed that there had to be provisions to cancel membership of a brigade eg for non-attendance. If a person hasn’t been seen for some time one would think it is reasonable to write to them and ask them to either commit to the brigade or remove their name from membership. One would want to have a ‘notice period’ to clear inactive names from the roll. One couldn’t insist on an answer in case people have moved away or simply chose not to engage. It would therefore seem reasonable to be able to say to someone – ‘we haven’t heard from you for a long time, if we don’t hear from you we will take steps to cancel your membership’.
But neither the Act nor the Regulations provide for that. It appears the only way to cancel a member’s enrolment is to make a recommendation to the CFA. It is the CFA, and not a Brigade, that determines whether a person is a member of the brigade (Country Fire Authority Act 1958 (Vic) s 23(1)(d)). And the only power to cancel a person’s enrolment arises when the member is convicted of an offence (rr 44 and 45). Even if a member failed to ‘comply with the training requirements determined by the Authority’ (r 43) he or she could only have his or her enrolment cancelled if it was alleged that failure constituted an offence under r 44.
Further, ‘A member of a brigade who wishes to resign from the brigade must notify the secretary of the brigade in writing’ (r 40). It follows that even if the brigade management were to write and say ‘‘If we do not hear from you … we will deem this as your resignation” that would not suffice. A resignation must be in writing from the member.
As for ‘leave’ there is nothing in the Act or Regulations to require a volunteer to seek leave. It is clearly intended that there could be regulations on this topic, but there are none so one must infer the omission to regulate leave is intentional. It could be done, but it hasn’t been done.
Conclusion
Remembering that it is the CFA, and not the Brigade, that determines who is a member of a brigade I can’t see how ‘a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone’.
Subject to the terms of any specific brigade rules, the only power to cancel a person’s membership of the CFA lies with the CFA and only if a member is convicted of an offence under the CFA Regulations (not just a criminal offence). Even if failure to attend training or otherwise take part in brigade activities could amount to misconduct, negligence, inefficiency, incompetence, disgraceful or improper conduct it could not justify termination of the person’s membership until the procedures set out in rr 46-57 had been followed. Merely writing in terms that ‘if we don’t hear from you we will infer your resignation’ will not suffice.
Whilst I can understand that the OM and Brigade management would want to know when people are available or ‘on leave’, there is not only no requirement, there is no procedure to seek or authority to grant leave.
Accordingly, my answers to the questions asked are:
Question 1: Can a non-response to the letter justify an assumption that the member ‘no longer wish[es] to be a member” of the brigade or be otherwise used to remove anyone.
Answer 1: No.
Question 2: What right has the OM to require a volunteer to seek approval not to offer their services at any particular time?
Answer 2: None.
Australian Emergency Law 
Michael – your answers were not “wrong” but “incorrect” based on interpretation and not reading a section of the Act.
In the number of different Acts, inter-dependencies and amendments, I would have a feeling that many of any agencies staff would be challenged to “provide the correct” answer or interpretation.
As usual, when provided the relevant information, you do “revisit” to topic and make the appropriate adjustments in clarification of the issue.
To out-rightly say it is “wrong” I believe is “wrong” in itself.
I’m happy to substitute ‘incorrect’ for ‘wrong’ 🙂
Hi Michael.
To further assist in clarification, the CFA does require a minimum number of trainings, meetings, and turnouts to incidents to maintain membership. I shall have to look it up and let you know.
Hello Michael
May I suggest a variation on the theme of your reply to question 1? You say ‘in principle, yes – but whether the particular letter issued in this case is sufficient depends on CFA internal policies and procedures which I can’t access and therefore cannot comment on’: I would like to propose a more objective position.
We would agree (I think!) that the apparently unlimited power in s23(1)(d) must, to be exercised lawfully, be exercised rationally: and that means, ‘ …a particular exercise of the power must be supported by reasoning which complies with the logic of the statute’ (French CJ in his 2015 paper Statutory Interpretation and Rationality in Administrative Law).
In the context of the present discussion I think that must mean that the power to cancel enrolment must be one that supports the purposes of the CFA Act: to maintain the efficiency of brigades yes; to discriminate against a particular group, take revenge on someone, bolster a personal power base, no.
Without more, I don’t think that the letter you quote is enough. The CFA could not prove that it had acted rationally simply by saying ‘a letter was sent – this person did not reply – therefore we cancelled their enrolment’. There would have to be more information: what was this individual’s attendance like pre-letter? Is anything known about them to explain why they might not have replied? Was the letter targeted to people who had already demonstrated disengagement by, e.g. not coming to training for six months?
CFA’s internal procedures are not necessarily relevant to that. CFA could issue an internal policy saying ‘no-one must ever miss a training night ever’ but that would not make an exercise of the s23(1)(d) power rational in the case of a person that had missed a single training night. I agree that it would be relevant if CFA had issued internal guidance on what ‘acceptable’ attendance was, but that is not this case: the letter supposedly just said ‘reply or we may assume you no longer wish to be a member’. There was no additional explanation such as ‘we haven’t seen you for six months’ or ‘you have failed to meet the CFA’s published standards for attendance’.
So my answer to your correspondent’s question 1 would be: ‘No, without more, non-response to the letter does not justify the assumption or amount to a sufficient basis for removing anyone. But there may be other, related facts (such as a history of failing to attend for training and callouts) that would justify cancellation of a member’s enrolment.’
As a postscript – if I was running a case on behalf of someone whose enrolment had been cancelled against their will in these circumstances, I would also run the argument that the CFA Regulations provide an exclusive code for dealing with cancelling a person’s enrolment for being negligent in the discharge of their duties, inefficient or incompetent. ‘Negligent’ in this context does not refer to legal concepts of negligence, but to neglectfulness. Because the Regulations prescribe a procedure for dealing with these matters, it is not open to a decision-maker to circumvent that procedure by relying on s23(1)(d) as though the Regulations had not been made. I don’t know if that would fly or not! But it would be worth a try.
Paul, fair comment indeed. It was certainly an issue for me that the Act and regulations do provide for the cancellation of enrollment if and only if a member is convicted of an offence under the Regulations and I agree that they can’t get around that by a simple arbitrary decision to cancel membership. I think there would also be issues if say the CFA sent a letter to a recorded address that they knew was not the preferred address or somehow. And it’s a good point that the letter doesn’t say what the person is supposed to have done, or not done, to trigger it. That begs the question of whether or not the CFA is required to give volunteers (as opposed to employees) natural justice but regardless of the law one would hope that they would feel obliged to do so.
So thank you Paul, I agree with all you’ve said.
Michael and Paul, given the comments you have both made I’m interested in your opinions as to whether or not it’s appropriate for a member’s registration to be cancelled based on allegations (not charges) made without any evidence being provided. If, in the course of making the allegations, documents were referred to as evidence supporting the allegations, could copies of these documents then be refused on the basis that they were (allegedly) not being relied on as evidence.
As for the original topic I would ask: is it reasonable for a member’s commitment to their brigade to be judged based solely on their absence, without considering the reason behind it? Have they been subjected to bullying, harassment, or threats which has resulted in their withdrawal from brigade activities?
The application of ‘natural justice’ would always require that a person be given details of the allegations against them and have the chance to address them. It follows that decisions should not be made that are adverse to a person’s interests without giving them details of the allegations and the opportunity to test the evidence. This happens in court rooms when witnesses are called and cross examined and all documentary evidence must be provided well before the hearing. If documents are referred to in the terms of the allegations then they should be made available.
Equally where it is intended to cancel a person’s membership they should at least be invited to ‘show cause’ why that action should not be taken and that would, in the right circumstances, allow them to explain why they have not been attending brigade meetings and if necessary what steps might be taken to remove those barriers and address issues of consistency.
Remember however giving a person those opportunities does not meant their explanation will be accepted. For example a person may say ‘they been subjected to bullying, harassment, or threats which has resulted in their withdrawal from brigade activities’. They may be given the opportunity to explain that but it does not mean the decision maker will accept that the conduct complained of amounted to ‘bullying, harassment, or threats’ or that whatever happened was sufficient to justify failure to meet minimum attendance or training requirements.
Michael, within the CFA Regulations 2014 are the requirements for members both to be eligible for membership and to remain eligible for membership. Schedule 2 shows the model rules which are referred to in Section 33 Brigade Constitutions as applying if the brigade has not adopted their own rules and had them approved by the Authority, and the brigades own rules can’t be inconsistent with the Act or the Regulations. Brigades should include a minimum number of brigade meetings that need to be attended annually and number of training sessions as part of their brigade rules that can then be used to determine continued membership based on activity.
Further to process of removal, there are two different statuses of membership, operational and brigade member, so an operational member may be moved to non-operational (solely brigade member status) it they don’t meet operational requirements as mentioned in Part 4 Division 4 Section 43 Training and Schedule 2 Section 4 being primarily capable of performing duties in a safe manner and being reasonably available for operational activities.
There is no definition of being reasonably available, but if a member did not attend any fire calls in 12 months it would be hard to argue that they made themselves available.
I think there is another issue that needs to be thought about. That is who has the legal ability to apply S23(1)d. Indeed who has the legal ability to apply any of the powers in the Act or regulations. The Act S16(c) provides for the CEO to delegate powers conferred on the CEO. What of the Authorities ability to delegate. Many provisions are couched in terms of the the Authority. S 28(1) provides the power for the CO to delegate. S109B the Authorities power to delegate. Who actually has the power to make the decisions that the Brigade is seemingly making. I suspect not the Brigade, nor perhaps even the OM. Do the instruments of delegation contain any conditions? The Parliament also does not give people carte blanche to act however they like. The principles of administrative law must apply. What requirements are there for the delegates to act in accord with principles of natural justice etc.
With respect to natural justice see:
1) Natural justice in, and the jurisdiction of, the CFA (January 21, 2017); and
2) the comments on this post by Paul.
Anyone have a simple answer to how much training ‘must’ be done as a CFA VOL- there are several different answers out there – volunteers only have to attend 1 training session, none after probation is over, brigade chooses, etc. whilst I understand that a vol can be moved from operational to non operational due to not turning out, where do members stand when people don’t train but then turn up when it hits the fan? How much training must be completed to be considered competent and current?