I have previously reported on the attempts by Mr Garth Duggan to retain his employment as a firefighter with Victoria’s MFB – see MFB firefighter sacked for conduct before his employment (August 7, 2017).  That earlier post was about a decision of the Federal Court of Australia which looked at whether or not the MFB had unilaterally changed a policy with respect to police checks. It was resolved that they had not.  As I say at the end of that post:

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.  … 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.

Following the litigation discussed in the earlier post that was required to resolve legal issues with respect to the jurisdiction of the Fair Work Commission, the original application for unfair dismissal has been finalised – Garth Duggan v Metropolitan Fire and Emergency Services Board (MFB) [2018] FWC 4945.  The relevant question for the Commission was whether Mr Duggan’s dismissal was ‘harsh, unjust or unreasonable’ (Fair Work Act 2009 (Cth) s 385).

The grounds for the dismissal were that Mr Duggan was not a fit and proper person to be employed as a firefighter given his history of improper conduct as an osteopath and that had had been dishonest in his application for employment to the MFB.  Deputy President Masson dealt with those two grounds separately.

Fit and proper person

The conduct that saw Mr Duggan struck off as an osteopath had occurred in 2009-2010.  He had commenced with the MFB in February 2016, 6 years later.  There was no allegation of misconduct during his time as an employee of the MFB. The reasons given by the MFB for terminating Mr Duggan’s employment ‘were not in relation to the Applicant’s conduct as an employee of the Respondent’ but that prior misbehaviour.  At [131]-[133] Deputy President Masson said:

A number of the concerns raised by the Respondent [that is the MFB] appeared to be based on its speculation that the professional misconduct … could be repeated if the Applicant remained employed by the Respondent. I note that several years have elapsed since the incidents of 2009 and 2010. Further, the environment within which the Applicant was then employed, that of an osteopath providing private consultations, is in my view in almost all respects different to that in which the Applicant would be engaged as a firefighter. I am not persuaded that suspicions or fears the Respondent may hold regarding the future behaviour of the Applicant or the impact the Applicant’s employment may have on female recruiting efforts are valid reasons for his dismissal.

The Respondent also contends that as the roles of osteopath and firefighter are similar in certain respects, the findings of professional misconduct as an osteopath are directly relevant to his employment with the Respondent. Evidence adduced by the Respondent went to those similarities in terms of the required levels of trust and confidence, although Mr Higgins concedes the obvious differences between the two.

While I accept that patients must place a high degree of trust in a medical practitioner and that the community must also place a high degree of trust in firefighters in an emergency situation, the context and circumstances are very different in my view, arguably save for the EMR [Emergency Medical Response] requirements of firefighters. In the latter case of EMR, I am not persuaded however that a private consultation with an osteopath is directly analogous to the performance of EMR by a firefighter… the incidence of a firefighter performing EMR without other persons present are likely to be rare.

At [136] the Deputy President said:

It follows from the above that I do not accept that the Respondent’s grounds for dismissing the Applicant, that being he was a not a fit and proper person based on the NCAT [New South Wales Civil and Administrative Tribunal] findings, found a valid reason for his dismissal.

The Applicant was not dishonest during the recruitment process

Mr Duggan had disclosed, when asked, that he had been arrested and charged by police since turning 18.  That was all the information he was asked to disclose and the MFB failed to make any inquires as to why he had been arrested or the outcome of those proceedings.

At [140] the Deputy President said:

… had the Applicant’s arrest and criminal charge disclosures been properly investigated by it, the Applicant’s employment application with the Respondent would not have progressed. The fact that the Applicant would not have progressed through the recruitment process had the Respondent made proper enquiries does not retrospectively found a basis for dismissal or demonstrate any dishonesty on the part of the Applicant. I am satisfied that the Applicant’s failure to volunteer further information beyond his affirmative responses to arrest and charge questions did not constitute dishonesty.

Eight days before the NCAT hearing, Mr Duggan had an employment interview with the MFB.  Mr Duggan’s evidence (see [35]) was:

  • While acknowledging the declaration that he had signed that day required that he not mislead or withhold information from the [MFB], he confirmed his belief that unless he was specifically asked a question during interview he was not obliged to disclose information.
  • He acknowledged that in answering a question during the interview in relation to stressful events he had experienced in his life, he chose not to disclose either the criminal or NCAT proceedings faced despite having described those events in his earlier evidence as extremely stressful. He explained this non-disclosure as due to his expectation that he would be asked questions during the interview relating to those particular matters due to the disclosures he had made during psychological testing.
  • While acknowledging having made particular statements during the interview which were recorded in the Interview Guide, he could not recall making certain other statements including “to walk away from osteopath” in response to a question regarding an important goal he had set for himself in the past. The Applicant asserted that particular reference did not make sense to him.
  • The Applicant conceded that during his job interview he may have identified his osteopath skills as relevant to the firefighter position he had applied for. He rejected the proposition put to him that it was misleading of him to have identified his osteopathic skills as relevant when he was about to appear in the NCAT proceedings relating to the HCCC application for his disqualification as an osteopath.

With respect to those matters the Deputy President found that Mr Duggan failed to disclose details about the proceedings in NCAT because ‘he quite reasonably calculated that disclosure of the NCAT proceedings during his recruitment phase would damage his prospects of securing employment. That decision, however, ‘does not necessarily lead to a conclusion that he was dishonest’ ([143]-[144]).

The fact that Mr Duggan made specific reference to his skills and career as an osteopath did, however, constitute dishonesty.  At [150] the Deputy Commissioner said ‘I am satisfied that the Applicant’s conduct during his interview, in citing his walking away from osteopathy as an important goal that was achieved and identifying osteopath skills as relevant to his employment as a firefighter while deliberately withholding information of his looming osteopath de-registration proceedings, was dishonest.’

The Applicant was dishonest once employed

After Mr Duggan was employed, the NCAT decision, including an order that Mr Duggan not provide ‘health services’ was handed down. Mr Duggan did not bring this decision to the attention of the MFB even though an essential role of the modern MFB is to provide emergency medical services pending the arrival on scene of Ambulance Victoria.    At [167] and [169] the Deputy President said:

The Applicant in my view had an obligation to bring the NCAT Decision No. 2 to the attention of the Respondent. The Respondent reasonably concluded that the prohibition on “health services” impacted on the Applicant’s ability to perform EMR duties. At the very least the NCAT Decision No. 2 cast doubt on the Applicant’s ability to perform EMR duties. I am satisfied that the Applicant’s decision to not disclose the information was conscious and consistent with the approach adopted by him during the recruitment process. The significant difference however, from the Applicant’s pre-employment conduct, is that the NCAT Decision No. 2 which potentially impacted on the Applicant’s ability to perform the full range of firefighter duties was rendered on 17 March 2016 after he had commenced employment…

It was not the Applicant’s prerogative to determine whether the NCAT Decision No. 2 prohibition on “health services” allowed or prevented him from undertaking the EMR duties. I am satisfied that the Applicant’s failure to disclose the NCAT decision was in these circumstances a dishonest course of conduct engaged in by the Applicant to avoid impacting on his employment with the Respondent.

The Applicant was dishonest during the course of the MFB’s investigation

These allegations related to submissions made by Mr Duggan in response to various ‘show cause’ letters issued by the MFB that is when the MFB indicated that they intended to terminate Mr Duggan’s employment but gave him the opportunity to address the issues raised by the MFB.

The Commission found [183]-[184]::

I have considered the possible explanations for the Applicant’s inaccurate and misleading account of events to both the Respondent in his 8 May 2016 response and to the Commission in these proceedings. I prefer the explanation that he set about to mislead and deceive the Respondent …

I am satisfied that the Applicant… sought to create and persist with a version of events that was inaccurate and misleading. In my view, the Applicant sought to deceive the Respondent as to his knowledge of the NCAT proceedings, the timing of such knowledge and his response to those proceedings during the course of the Respondent’s investigation. I am satisfied that this behaviour of the Applicant was dishonest.

The Commission’s conclusion on whether there were grounds for dismissal

The Deputy President concluded as follows [189]-[191]:

I am not satisfied that the NCAT findings in themselves and the conclusions that the Respondent reached that the Applicant was not a fit and proper person based on that decision establish a valid reason for his dismissal. Nor am I satisfied that the Applicant was dishonest by not volunteering information beyond the affirmative responses he provided to the arrest and charge questions during the recruitment process.

I am however satisfied that the Applicant engaged in dishonest conduct during the recruitment, employment and investigation process. That dishonesty of which I have made findings above are that he:

  1. disingenuously responded to questions during his formal job interview on 19 November 2015 in which he held out his osteopath skills as relevant to his application for a firefighter role and identified his having achieved a goal in walking away from osteopathy while failing to disclose the NCAT proceedings dealing with the HCCC application for his osteopath de-registration;
  2. failed to disclose the NCAT Decision No. 2 of 17 March 2016 in circumstances where an order in that decision prohibited him from providing “health services”, such prohibition being directly relevant to his capacity to perform the full range of duties of a firefighter with the Respondent, specifically EMR; and
  3. provided a false and misleading version of events to the Respondent during its investigation and to the Commission in his evidence as to the NCAT proceedings, the timeline of NCAT proceeding events and to his knowledge of those events relative to his recruitment by the Respondent.

The dishonesty engaged in by the Applicant was not a trivial or one-off event but can be seen as a pattern of dishonest conduct motivated by the Applicant’s concern that honest and candid disclosure would have threatened his employment with the Respondent. In the circumstances, I am satisfied that the Applicant’s dishonesty constitutes misconduct and establishes a valid reason for his dismissal.

The Commission then considered whether the MFB had met procedural and natural justice obligations and concluded that they had.   The order of the Commission was that the decision to terminate Mr Duggan’s employment was ‘… not harsh, unjust or unreasonable and consequently he was not unfairly dismissed’ [212].

Legal lessons

Honesty is the best policy.  Mr Duggan honestly answered the MFB’s questions on the application for employment.  The MFB failed to follow up on his answers.  Mr Duggan was not dishonest when he failed to volunteer information he was not asked for.

He was dishonest when he tried to ‘spin’ the story for his benefit.  To rely on his experience as an osteopath to show he was a suitable candidate for employment as a firefighter was dishonest when he was well aware of the proceedings against him and that he was at the time suspended from practice (and later ‘struck off’).

It was dishonest to deliberately withhold information that went to his capacity to perform the duties of a firefighter.  And it was dishonest to attempt to mislead the MFB about his knowledge and timing of the proceedings against him.

What is also important is that it was not his prior conduct that meant he could be dismissed.  Conduct that occurred 6 years earlier in very different circumstances may have been grounds not to employ him, but having made the decision to employ him, they were not grounds to dismiss him.   In these days of ‘law and order’ auctions there is the aphorism that ‘if you do the crime, you should do the time’.  There should one hope also be a view that if you have done the time you should be allowed to get on with your life or punishment becomes universal and forever and continues to impose costs on the community.   A punishment was imposed by NCAT and it was that Mr Duggan not practice as an osteopath, not that he never work again.

Conclusion

Mr Duggan’s misconduct 6 years before he was employed by the MFB did not mean that he was not a ‘fit and proper’ person to be employed as a firefighter.  His dishonest dealings with the MFB in failing to advise them of his changed circumstances when NCAT banned him from working in health care and then attempting to mislead the MFB about what he knew and when about those proceedings were, however, sufficient grounds to warrant his dismissal.

Given the number of cases and appeals in this matter, I would not be surprised if this was not the end of the matter.  Unless and until there is an appeal, however, Mr Duggan’s dismissal stands.