This story has received news coverage (see Groping osteopath loses bid to keep firefighting job The Age, 3 August 2017) but the news story does not do justice to the complex legal issues that arose in the various legal hearings.

Before explaining the legal proceedings, I’ll start with a timeline:

  • 2005, Mr Duggan is registered as an osteopath.
  • 2009 and 2010, complaints are made that Mr Duggan engaged in ‘clinically unwarranted touching of the pelvic and pubic regions of all three patients, and vaginal penetration of two of them, in association with extremely poor, or non-existent, history taking, consent and treatment documentation practices’ (Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30, [2]).
  • 2010, criminal charges laid.
  • 2012, Mr Duggan acquitted of all offences in the NSW District Court. Sometime after that, Mr Duggan moves to Victoria.
  • 2013, Mr Duggan applies for employment with the MFB. During the recruitment process ‘“Mr Duggan was also asked whether he had been arrested since he turned 18, and whether he had been charged by the police with committing a crime, and responded that both were “true”. The MFB does not have any record of any further inquiries being made at that time with Mr Duggan in relation to any criminal charges which had been made against him” (Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028, [17]). That is he honestly answered the question that he had indeed been charged, but ‘at no time prior to 29 April 2016’ (see [23]) did the MFB make any inquiries as to what he was charged with or what happened to those charges.
  • 9 June 2015, the Health Care Complaints Commission lodges complaints of unprofessional conduct and professional misconduct with the Osteopath Tribunal. There is no explanation as to why the complaints are lodged 3 years after the criminal proceedings.
  • 16 September 2015, Victoria Police issue a National Police Certificate, which advises that “[a]t the date of issue there are no disclosable court outcomes recorded”.
  • 23 December 2015, MFB offer Mr Duggan employment as a recruit firefighter including 3 months’ probation.
  • 9 February 2016, Mr Duggan commences his employment and recruit training.
  • 18 and 19 February 2016, the professional disciplinary proceedings were heard largely in the absence of Mr Duggan who was not represented.
  • 17 March 2016, Adverse ruling from NSW Civil and Administrative Tribunal (Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30) handed down. Duggan is struck off the roll of Osteopaths for at least 6 years. He is prohibited ‘from providing any “health services”’ until he is restored to the roll.  This decision is brought to the attention of the MFB by other recruits, not by Mr Duggan. The MFB advise Mr Duggan that it is not appropriate for him to continue beyond the probationary period and he is stood down on full pay.
  • 30 April 2016, the United Fire Fighters Union (UFU) notified the MFB that it was in dispute regarding Mr Duggan “including but not limited to the failure [by the MFB] to undertake the proper process in the enterprise agreement, consultation, change, policy and termination.” The UFU requested Mr Duggan’s employment be continued in accordance with the dispute settlement clause of the relevant Enterprise Agreement.
  • 5 May 2016, Mr Duggan is informed that the MFB’s preliminary view is that his employment will not continue beyond the end of his probationary period (ie 9 May 2016). The reasons for his termination do not relate to his conduct as an employee, rather that the findings of the Tribunal meant that:
    • ‘That Mr Duggan did not meet the standard of personal integrity that is an inherent requirement of being a firefighter;
    • That the MFB could not “conscionably hold” Mr Duggan out to the community or other staff members as being a person who could hold the degree of trust expected of a firefighter;
    • That the NCAT decision meant that he would be unable to safely perform the inherent requirement of providing emergency medical assistance to members of the community; and
    • That, given the conclusion of NCAT, his continued employment with the MFB posed a risk to health and safety not only of other MFB employees but also members of the public and potentially to himself’ (Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028, [25]).
  • 6 May 2016, Mr Duggan applies to have the NSW decision set aside.
  • 8 May 2016, Mr Duggan responds to the MFB letter.
  • 8 May 2016, there is a directions hearing regarding Mr Duggan’s application to have the NSW Decision set aside. The matter is set down for hearing in September 2016.
  • 9 May 2016, the MFB requests further information.
  • 24 May 2016, MFB writes confirming the decision to terminate Mr Duggan’s employment. Considering ongoing correspondence between the MFB and the UFU, the MFB acknowledges that there is a ‘dispute’ and that in accordance with the terms of the Enterprise Agreement the decision to terminate his employment will not be acted upon until the dispute resolution processes are resolved. The MFB refers to the matter to the Fair Work Commission in accordance with the dispute resolution terms of the Enterprise Agreement. The issues that are the subject of the dispute are (Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028, [43]):

1. Whether or not there was a failure by the MFB to follow any process mandated by the Agreement with respect to the termination of Mr Duggan’s employment, in particular whether ‘the MFB has complied with the mandated processes in respect of a desired change to the Police Check Policy and whether it has followed its obligations in relation to Mr Duggan, being on “probation” and a “probationary employee”’ ([50]);

2. Whether the dispute the subject of this proceeding is resolved; and

3. Whether the decision to terminate the employee’s employment can therefore now be implemented by the MFB.

  • 11 July 2016, the matter is heard by the Fair Work Commission.
  • 3 August 2016, the Commission delivers its decision in Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028. The Commission determines that the MFB has complied with the policy on police checks but not on probationary employment. The Commission orders that Mr Duggan remain a probationary employee for 12 months and to be given a warning to the effect any future misconduct will result in his dismissal.
  • 23 August 2016, the MFB appeal the decision to the full bench of the Fair Work Commission.
  • 15 September 2016, Mr Duggan and the UFU also lodge an appeal.
  • 19 October 2016, the appeal is heard.
  • 11 November 2016, the Full Bench hands down the decision in Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWCFB 8120. The full bench upholds the MFB’s appeal and finds that there was no failure by the MFB to follow the process set out in the Enterprise Agreement. Mr Duggan appeals to the Full Federal Court.
  • 3 April 2017, the Federal Court hears the appeal.
  • 3 August 2017, the Federal Court dismisses Mr Duggan’s appeal (Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112) so his dismissal as a firefighter is confirmed.

The issue at the first hearing – Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028

The issue here was whether the MFB had complied with policies regarding police checks and probationary employment.

The difficulty in this case was indeed that Mr Duggan did nothing wrong whilst an employee of the MFB. The fact that he didn’t tell the MFB of the decision by the NSW was unsatisfactory and something that disciplinary sanctions could be applied but it did not warrant dismissal.

The argument from the UFU was that the MFB had a policy to require police checks and there were some offences that would mean a person could not be employed as a firefighter.  Mr Duggan of course had a clear police check as he had been acquitted of the offences charged.  The UFU argued that by implication the MFB were implementing a new policy and that they had done so without consultation.   The Commission rejected that argument. It did find that had the MFB asked Mr Duggan what he had been charged with the MFB would have been entitled not to employ him, but they did employ him but the decision to terminate his employment was not evidence that the MFB

… sought to unilaterally amend its Police Check Policy by introducing a new and additional criterion that adverse findings by an occupational tribunal can render a person unsuitable for employment as a firefighter. Instead, the evidence leads to findings that Mr Duggan was asked to supply information consistent with the Policy, which he did; that the MFB considered the information he provided and, notwithstanding what it received, made no election to exercise its discretion not to employ Mr Duggan’ ([61]).

Rather, said the Commission, because the decision to terminate his employment was based on information obtained after the employment commenced, but relating to conduct before Mr Duggan was employed by the MFB, the MFB was changing its policy with respect to probationary employment.   As Commissioner Wilson said at [67]:

The evidence leaves little doubt that the MFB proposes Mr Duggan be dismissed as a probationary employee because the MFB believes it is entitled to do so. There is also little doubt that, despite the MFB’s hesitation on the matter, that it wishes to do so because it considers Mr Duggan’s professional misconduct as an osteopath to be an unacceptable background for a firefighter.

Commissioner Wilson took the view that a period of probationary employment was to allow the employer to determine if the employee was suited to the work in question. He said (at [77]):

 It is apparent from this analysis that “probation” or engagement as a “probationary employee” is an examination of how the employee presents themselves once employment has commenced, being “a time of testing or trial”, “a process of putting to proof …investigation and examination”. After training an assessment can be made of aptitude or capacity. If a person has not been satisfactory in their position, “the employment relationship can be easily terminated or the probationary period can be extended”. Nowhere, does it seem, do the well accepted meanings turn to the consequences of uncovering after employment some fact from things prior to the commencement of employment. Instead, those matters are likely to be protected through the ability to dismiss for serious misconduct.

It followed that dismissing Mr Duggan on the basis that he had not satisfactorily completed his probation, on the basis of conduct that occurred before his employment (and conduct that they could have discovered if they had only asked and then decided not to employ him) was a change in the employment terms.  To effect that change the MFB had to consult with the UFU and they had not done so.

Accordingly, Commissioner Wilson found that the MFB could not dismiss Mr Duggan. Because of his failure to tell the MFB of the NSW decision however, he did say it was reasonable to impose sanctions hence the order that his probation be extended and that he be subject to a warning that any further misconduct would amount to dismissal.

The appeal – Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWCFB 8120.

The appeal was very technical and related to the jurisdiction of the Commission rather than the merits of the case.  The relevant Enterprise Agreement said that in the event of a dispute between the parties, the dispute could be referred to the Fair Work Commission that could resolve it.  In effect, the FWC although a government, statutory authority, was being asked to act as a private dispute mediator.  It had jurisdiction only to the extent that the parties asked it to resolve a dispute and only to deal with the matters in dispute.

The Full Bench found that the claim that the MFB had changed its policies with respect to police checks was the subject matter of the dispute.  Commissioner Wilson had found that there was no evidence that this had occurred, that is the MFB had not breached or changed its policy with respect to police checks.   The issue of the probation policy was never before the Commission.  The Full Bench said (at [49]):

The dispute over changes in policy related specifically to the Police Check Policy. The UFU made no allegation about breach of any probation policy and the matter was not subject to evidence or submissions by the parties. The UFU did raise general merit issues relating to the basis for the decision to terminate. These concerned the appropriateness of relying on the NCAT decision. However, we are unable to discern any basis in the material before the Commissioner to suggest that the dispute between the parties included a dispute about the extent of consultation over a change to a policy regarding probation and probationary employee. In purporting to determine such a dispute the Commissioner ventured beyond the dispute between the parties, made findings on matters that the parties were not given an opportunity to address and exceeded the power of private arbitration conferred by the agreement.

Although the Commission can determine the merits of a dismissal (ie ‘unfair dismissal’) a person on probation cannot seek a remedy for unfair dismissal. Further raising a ‘dispute’ (in this case about the police check) and using it as a ‘back door’ to raise the merits of the dismissal would be a process to avoid the provisions in the Fair Work Act 2009 (Cth) that are intended to limit the unfair dismissal remedy.

The Commission, resolving that the MFB had not unilaterally amended the police check policy, had resolved the issue in dispute and that was all it could do. Having done that, it was the end of the matter.

The appeal to the Federal Court – Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112

The Federal Court agreed that if the dispute resolution provisions contained in the Enterprise Agreement were used to either delay an employee’s termination beyond 6 months or to raise the merits of a termination decision then it would, in effect, give a probationary employee a right to a merits review that was specifically prohibited by the Fair Work Act.  As the Court said at [89] ‘It is strongly arguable that Clauses 27.1.2 and 27.1.3 of the Agreement, when read together, act as an impediment on the MFB’s capacity to terminate an employee within the first six months of that employee’s engagement’. Any provision in an award that did act as that impediment was of no effect (Fair Work Act 2009 (Cth) s 194(c)).

Accordingly, the Federal Court upheld the decision of the full bench of the Fair Work Commission.

The result

The result was that no-one really dealt with the issue at the heart of the matter – whether the outcome of the NSW Decision was really grounds to sack Mr Duggan.  One issue for the MFB was that providing emergency health care is now a fundamental part of the MFB role.  It was agreed that the prohibition on Mr Duggan, imposed by the NSW Tribunal, applied Australia wide so Mr Duggan could not take part in the MFB’s emergency medical response. But equally it turned out that firefighters were entitled to refuse to participate in that program so Mr Duggan could be employed as a fire fighter without being part of the emergency medical response (Metropolitan Fire and Emergency Services Board v Garth Duggan and the United Firefighters’ Union of Australia [2016] FWC 5028, [104]-[106]).

Whether then it was ‘fair enough’ to sack Mr Duggan was not resolved because, as the Full Bench and the Federal Court said, there was no provision of a merits review. It may have been that Commissioner Wilson was correct, that the MFB didn’t properly apply its probation policy, but that issue was not properly before him so it was not a matter that he could rule on.

The only issue before him was the issue of the police check policy.  The MFB did not act contrary to that policy.  With that finding the Commissioner resolved the dispute that was referred to him so there was nothing left for him to determine.  With the resolution of the dispute the MFB were free to dismiss Mr Duggan within the probationary period.

That is a rather unsatisfactory result because the question of whether pre-employment conduct can be a reason for dismissal in the probationary period was never properly tested. Commissioner Wilson said that it could not, the Full Bench and the Federal Court did not say whether he was right or not, only that the question was not properly before him.