The issue of ‘natural justice’ and how volunteers can seek review of decisions to discipline them or terminate their membership has arisen before on this blog- see:
- ‘Reasonable Grounds’ for disciplinary action in the South Australian Country Fire Service (October 10, 2014);
- Revoking appointments – Queensland SES (October 19, 2014);
- Natural Justice and the SES (September 28, 2015; relating to Victoria SES);
- Natural justice in, and the jurisdiction of, the CFA (January 21, 2017);
- Managing HR issues within a CFA brigade (July 17, 2017);
- Conflict of interest and natural justice in an RFS Disciplinary hearing (October 25, 2017); and
- Volunteers, unfair dismissal and the SES (June 27, 2019; relating to NSW SES);
See also, with respect to paid staff
- Unfair dismissal and NSW Fire and Rescue (June 4, 2013); and
- Further decision against firefighter sacked for dishonest dealings with Victoria’s MFB (November 30, 2018).
The latest decision in this area is Gilmour v Waddell & Ors  QSC 170. (I expect that applicant was the correspondent who asked the questions that led to the post Revoking appointments – Queensland SES (October 19, 2014)).
In this case the applicant was a member of the Brisbane Metro Group of the Queensland SES (). The applicant’s ‘appointment as a volunteer member of the State Emergency Service was terminated after an investigation into allegations about his conduct’ (). He sought a judicial review of that decision. Her Honour Ryan J (at ) identified that the applicant’s arguments raised issues of:
- denial of natural justice;
- that the decision was beyond the decision maker’s authority;
- that the applicant was unlawfully prejudiced for making a disclosure under the Work Health and Safety Act 2011 (Qld) and/or the Public Interest Disclosure Act 2010 (Qld); and
- that the decision’s made were so unreasonable that no agency vested with similar authority would have made that decision (a ground referred to as ‘Wednesbury unreasonableness’ after the decision in Wednesbury Corporation v Ministry of Housing and Local Government (No 2)  3 WLR 956).
The catalyst for the action that ultimately led to the applicant’s termination arose during a training night. At - Ryan J said:
The Metro Group scheduled a training exercise for new recruits on the HMAS Diamantina, a ship in dry dock, to be held on the evening of 20 May 2013.
A few years earlier, in October 2010, the applicant had attended a similar training exercise on the HMAS Diamantina and noticed that certain cladding on the ship looked like asbestos cladding. At the time, he warned his team members about it and passed on his concerns to Deputy Group Leader Glenn Hedges.
On 13 May 2013, a week before the Diamantina exercise, in the course of training new recruits about emergency lighting, the applicant told them to be aware of the asbestos cladding on the ship and not to disturb it. He told the recruits that they should take dust masks to the exercise. One of the recruits, Stephanie Keeley, asked where she might find dust masks. The applicant told her where he had last seen some and Ms Keeley went to look for them.
The applicant was taken aside by the Group Leader and Deputy Group Leader and ‘was criticised … for causing alarm to the recruits. Their conversation became heated’ (). The next day the applicant posted ‘a caution about the asbestos on the ship on the internal discussion page of the SES volunteer portal’ (). He was directed to remove or correct the post (). On 15 May the applicant was told, by email, that he could not attend the training exercise as the Group Leader could not ‘trust you to work in a team and to not undermine the exercise and management team by following your own agenda” (). At -
A few days later, the applicant posted commentary on the portal which was intended for those participating in the Diamantina exercise. He said he had been suspended from the SES – the “true intention” being to stop him from passing on his safety concerns to other members of the group.
He repeated his warning about asbestos and the need to use masks. He also attached correspondence between himself and [the Group Leader] and others – some of which related to the 2013 Diamantina exercise and some of which related to the 2010 Diamantina exercise.
A complaint was made to the Local Controller. Without going into all the details, the complaints related to the applicant’s behaviour toward others being aggressive and disruptive, and failing to comply with the SES Chain of Command (see -). A Local Controller does not have the power to suspend or terminate a person’s membership. At the time of these events the unit controller was required to raise concerns with the Emergency Management Queensland Area Director who in turn reports to the Regional Director. An inquiry if one was required was to be conducted by the Ethical Standards Unit of EMQ (see ).
The complaints made their way to the Regional Director of the South Eastern Region of Emergency Management Queensland who advised the applicant, on 16 May 2013, that his membership was suspended pending further investigation. His suspension was to remain in force until 18 August 2013 (). A person was appointed to conduct the investigation. The applicant’s suspension was extended until 16 August 2013 ().
Prior to an interview the applicant made further posts regarding the Diamantina where he said, inter alia ():
… The reason I visited was to find out what they were trying to hide by suspending me from the SES following my advice to members to wear a face mask and not to disturb any pipe or cladding with a material coating. I feel sorry for the volunteers…
The terms of the investigation were expanded (at ):
… to include further allegations “as a result of” the applicant’s actions since the initial complaints were made. The revised terms of reference were as follows:
- The complaints made by [named persons] that Edward Gilmour behaved inappropriately towards them on 13 May 2013;
- The complaint made by [the unit controller] that Edward Gilmour failed to follow a reasonable direction given to him by on or around 14 May 2013;
- Mr Gilmour posted items on the SES Volunteer Portal that were of a confidential nature, undermined the authority of the Group Leader and Local Controller in a public forum, and compromised the privacy of certain members of the Metro SES Group;
- Mr Gilmour failed to follow the chain of command, despite being counselled to do so on two previous occasions;
- Mr Gilmour discussed elements of the investigation into complaints against him with others not involved in the investigation, despite written directions from the Regional Director and Investigating Officer not to do so.
There were further efforts in September 2013 of the applicant to raise his concerns about the exercise on the Diamanitina including ‘what he claimed was a Public Interest Disclosure to Mr Anderson (the Director General), members of Parliament and other SES volunteers’ (-).
On 3 September 2013 the appointed investigator produced a report finding some, but not all, of the allegations were substantiated. In particular (at ):
… he did find evidence which, if accepted by the decision-maker, would substantiate the allegations that the applicant –
behaved inappropriately towards [named persons] on 13 May 2013;
posted items of a confidential nature on the SES Volunteer Portal which undermined the authority of the Group Leader and Local Controller in a public forum;
failed to follow the change of command; and
discussed elements of the investigation with those not involved in it, despite being directed not to do so.
In the investigator’s opinion ‘that conduct would constitute breaches of the Code of Conduct applicable to the applicant. He recommended that the decision-maker give consideration to what further action, if any, ought to be taken against the applicant’ ().
Following that report senior members of EMQ met with the applicant to discuss alternatives to disciplinary action in particular whether he would agree to move to another unit because (at ) ‘there was “no appetite” for his return to the Metro Group or any other Brisbane group and the hope was to find a “space” for the applicant which allowed him to “contribute” to the SES’. The applicant’s ‘suspension was extended until 31 December 2013, pending his placement elsewhere’ (). Then (at -):
On 16 December 2013, Mr Waddell [Regional Director EMQ] informed the applicant that he was considering extending his suspension until 31 December 2014, explaining that the purpose of temporary suspension was “to temporarily remove an SES Member from active service whilst there remains a risk that the proper and effective management of the SES may be prejudiced if that SES member were to remain in that role”.
Mr Waddell informed the applicant that he had been seeking an alternative placement for him since 11 October 2013. None was available. Mr Waddell sought submissions from the applicant about his proposed suspension from the SES until 31 December 2014.
Ultimately, the applicant’s suspension was extended until 31 December 2014 by letter from Mr Waddell dated 21 January 2014. The applicant was informed that Queensland Fire and Emergency Services would continue to seek a suitable placement for him elsewhere.
On 21 February 2014 the applicant filed an application for a statutory order of review of Mr Waddell’s decision to extend his suspension until 31 December 2014.
In March 2014 the applicant sent an email to 790 SES members critical of the SES and advising them ‘that he had decided to run “a low volume email blog of issues (safety or conduct) you tell me about where you fear some reprisal for raising them” (). Mr Roche Acting Deputy Commissioner, Operations and Emergency Management, Queensland Fire and Emergency Services wrote to the applicant and advised that rather than proceed with the approach of trying to find him an alternative place to contribute to the SES, he was ‘reinstating the investigation report because the applicant sent the bulk email to 790 SES members on 10 March 2014, despite having been directed not to send group emails without approval’ (). Details of the investigation report were provided, and the applicant was invited to show cause why he should not be subject to disciplinary action (-).
The applicant made submissions which were considered. He was then advised that Mr Roche was considering terminating his appointment as a member of the SES and he was again invited ‘to make submissions as to why his appointment should not be revoked’ (). ‘On 21 August 2014, Mr Roche advised the applicant that he had decided to revoke the applicant’s appointment as a member of the SES’ ().
If should be remembered that back in February 2014 the applicant had filed proceedings in the Queensland Supreme Court for a review of the decision to extend his suspension. In light of these further developments the application for review was extended ‘to include all aspects of the decision of Mr Roche to revoke the applicant’s appointment as a volunteer member of the SES’ (). It was that application that was determined by Ryan J.
The judge reminded the applicant that her job was to determine whether the decisions made were made in accordance with the law and the authority given to the decision makers by Parliament. It was not her job to determine whether it was the ‘right’ decision or the decision she would have made had she been the original decision maker, rather ‘the court is concerned with the lawfulness of the exercise of administrative power – not with the correctness of its outcome ( see also ).
Was the applicant’s termination unlawful because it was “in excess” of the Public Sector Ethics Act 1994?
It was argued that the decisions made were made beyond power in the Public Sector Ethics Act 1994 (Qld). Under that Act the Code of Conduct for public sector employees extended to SES volunteers (see ; see also the comments that follow my post Revoking appointments – Queensland SES (October 19, 2014)). Although the Code of Conduct applied the disciplinary provisions of that Act did not, but Mr Roche (he Acting Deputy Commissioner, Operations and Emergency Management, Queensland Fire and Emergency Services who made the decision to terminate Mr Gilmour’s appointment) was not and did not purport to exercise any power under that Act – ‘He did not therefore act in excess of the PSEA or otherwise apply the PSEA unlawfully in deciding to revoke the applicant’s appointment to the SES’ .
Was the applicant’s termination an offence under the Work Health and Safety Act 2011 and therefore unlawful?
Mr Gilmour argued that he was being disciplined and terminated in his role as punishment for raising genuine work health and safety concerns and that this constitutes an offence contrary to the Work Health and Safety Act 2011 (Qld) s 104 and 106(h) (-).
Even if the court accepted the applicant’s argument that those provisions of the Act were relevant ‘the difficulty faced by the applicant is that he must persuade the court that the reason his appointment to the SES was revoked was because he had raised concerns about asbestos’ (). Her Honour was not so satisfied. She was satisfied that his termination was not due to the nature of his concerns but about the way he chose to raise them (-).
Was the applicant’s termination a reprisal for a public interest disclosure and therefore unlawful?
This faced a similar problem to the argument about the Work Health and Safety Act. Even accepting that giving a warning to the recruits did constitute a disclosure on a safety issue, it was not protected because he did not comply with the requirements of the Act with respect to making a disclosure in that he did not use the procedures provided for by the SES to raise his concerns (Public Interest Disclosure Act 2010 (Qd) s 17(2)). Her Honour said (at ):
… even if the applicant’s warning to the recruits was a public interest disclosure in a general sense, the protection of the PIDA did not apply to him. Nor did the evidence suggest that the applicant’s termination was a reprisal for the fact of his warning the recruits about asbestos. As discussed above, his warning the recruits may have triggered everything which followed but that is not to say that his warning the recruits was the reason for the termination of his appointment.
Breach of Natural Justice
There were multiple issues under this heading including a failure by the investigator to provide to Mr Gilmour the written statements of those that had complained about him at an early stage of the proceedings. Her Honour explained (at -):
The rules of natural justice are concerned with procedural fairness.
Natural justice requires a fair hearing, not a fair outcome (as judged by a person in the applicant’s position). The focus is on the process not the actual decision.
Natural justice requires someone in the applicant’s position to be informed of the accusations made against them and to be given an opportunity to state their case. It also requires the decision maker to be free from bias.
The demands of natural justice depend on all of the relevant circumstances, including the nature of the process and its likely consequences. The expected standard of fairness rises as issues become more serious.
The SES, in argument, submitted that Her Honour should apply the principle from Ainsworth v Criminal Justice Commission, in which it was said:
“It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process’ viewed in its entirety, entails procedural fairness”.
Her Honour reviewed the process that had been adopted by the SES and found that there had been no denial of natural justice. The applicant was fully informed of the allegations against him and was given the opportunity to address the relevant decision maker at steps throughout the process.
Was the decision unreasonable?
The argument that a decision is ‘unreasonable’ is a limited one as courts are there to ensure that authorities who are given decision making power by legislation exercise that decision according to the legislation, not that they make the decision the judge would have made. At  and  Her Honour said:
The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances…
A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.
She concluded (-):
I am of the view that the decision to revoke the applicant’s appointment to the SES was not unreasonable in the relevant sense.
The particular misconduct alleged against the applicant occurred against the background of previous warnings.
In his statement of reasons, Mr Roche explained that he had taken into account that certain other members of the SES were not prepared to work with the applicant in the Metro Group. He also took into account that attempts to transfer the applicant to another SES group had not been successful for reasons which included the applicant’s unwillingness to accept certain conditions which had been placed upon his transfer to a certain group. The applicant argues that those considerations were irrelevant.
Having regard to the statutory context and the serious nature of the work of the SES, it was open to Mr Roche to take into account the risks to the operational effectiveness of an SES group were the applicant placed with it. The risks to teamwork and authority were very relevant ones.
In my view, it cannot be said, having regard to the challenging nature of the applicant’s conduct, that the decision to revoke his appointment to this voluntary organisation, which undertakes important emergency work and which depends for its efficiency on respect for authority and adherence to direction from superiors, was not intelligently justified.
The result was that Mr Gilmour failed to establish any grounds for a review of the decision and his termination was confirmed.
This case raises many problematic issues. First as noted, volunteers do not have recourse to the relatively simple and cheap ‘unfair dismissal’ procedures that are open to employees (see Volunteers, unfair dismissal and the SES (June 27, 2019)). Where a volunteer does want to seek review of their decision, they need to go to either the state or territories Civil and Administrative Tribunal or the Supreme Court. Whether it’s the Tribunal or the Court that has jurisdiction depends on the legislation governing the Tribunal and the legislation under which the decision is made (see Natural Justice and the SES (September 28, 2015)).
Second, anyone who is willing to take a matter to the Supreme Court must have a great deal of faith in their own cause. The process is slow, gruelling and potentially very expensive. No-one takes that course of action lightly, but the problem is that level of commitment, made worse by the time taken to prepare and dwell on a case, makes it hard to see the other side’s point of view and to therefore reach a compromise. If you truly believe in your cause, and your view of the world, then the only explanation for the other sides failure to recognise the justice and rightness of your cause is that they are corrupt, acting for ulterior motives or acting out of malice. A judge (and hopefully a lawyer if you are represented by a lawyer) is not so involved and can better see the other sides perspective and identify what can and cannot be proved.
It is not sufficient to assert that decisions are made for reasons other than those given by the decision maker. If you believe you are right and the other side must know you are right, then a rational explanation is that there must be ‘more to this than meets the eye’. But an impartial observer has to be persuaded that this is the case and where the witness confirms that he or she acted for the reasons given that can be sufficient. As Her Honour said (at ):
I do not doubt that the applicant had some genuine (even if invalid) concerns about the asbestos risk associated with the exercise which triggered his conduct on 13 May 2013 and everything that flowed thereafter, including his ultimate removal from the SES. But that is not to say that the applicant’s appointment was revoked because he raised an issue about safety.
It was not the subject matter that led to his dismissal but the way in which he raised and continued to raise it posing a risk to the operational effectiveness of the SES (see ).
Becoming focussed in one’s view and one’s cause has implications for others. Mr Gilmour chose to take the matter to court and one might say that a person in the position of Mr Roche an Acting Deputy Commissioner of the Queensland Fire and Emergency Services may be expected to, and understand that he may have to, defend his decisions in a court. Also joined in these proceedings were the Regional Director EMQ, the EMQ Area Director, the Local Controller and Mr Gilmour’s Group Leader and Deputy Group Leader. I infer that the Local Controller and Group Leaders are volunteers too. They may volunteer for leadership roles but did not volunteer to be joined as defendants in proceedings that meant a matter that began in May 2013 did not end until June 2019. People express concern that if they volunteer for the emergency services they will be caught up in litigation for years (noting that the trial arising from the Canberra 2003 bushfires finished nearly 10 years to the day after the fires). It is argued, frequently, on this blog that the risk of legal issues arising from emergency response is low. Here the risk was not an emergency but a choice by these volunteers to take on a leadership role. They may never have been at real risk as the SES must have met the legal costs and the remedy that was being sought was not money damages but a review of a decision, but even so being named defendants for some 5 years is a big burden to bear.
I’m not sure what the answer is. One answer is to make sure that there are procedures in place to make decisions and that these are followed. The problem with putting it that way is that is what happened in this case. The court found that the decision makers did make the decision they were entitled to make in accordance with the law, but equally Mr Gilmour was entitled to seek a review to put his argument that this had not happened. I don’t know any solution. There needs to be a process to review important decisions and for emergency service volunteers their status in the organisation and their belief in themselves are put at risk by disciplinary decision making. And no-one likes to be subject to recriminations if they really believe they did the right thing and acted in good faith. But people can never be effective judges in their own cause.
Finally, I do note that in my blog post Revoking appointments – Queensland SES (October 19, 2014) I was asked
Accepting that the power to appoint includes the power to revoke that appointment of an SES volunteer the how might the phrase ‘“only if satisfied the person has the appropriate abilities to bean SES member” in Fire and Emergency Services Act 1990 (Qld) s 132 be qualified or clarified?
I’m pleased to say that I think Her Honours findings were consistent with the views I expressed in that post.
In the discussion that followed I was asked:
Can the disciplinary portion of the Qld Public Sector Ethics Act (Particularly Section 23A) in regards to claimed breaches of the Code of Conduct claimed via the Commissioner of QFES be applied to SES volunteers?
My answer was ‘Yes in my view they can.’ Her Honour took a different view holding that although the Code of Conduct applied, the disciplinary provisions did not (see ). In making that finding she relied on s 23A of the Public Sector Ethics Act 1994 (Qld) which says ‘This part does not apply to a person mentioned in section 11 (1) (c) or 13(1)(c)’. The persons listed in 11(1)(c ) and 13(1)(c) are ‘persons who are not public officials of a public service agency who have a contract or other agreement with the public service agency’ and that includes volunteers. It follows that my conclusions there were incorrect.
This is another case where a volunteer has unsuccessfully challenged a decision to terminate their membership. Whether the decision was a good decision or not is impossible for us to judge and, more importantly, was not what the judge was asked to do. The lesson for those who may want to take similar action in future is to understand that on judicial review, the judge’s job is to determine whether or not the decision maker acted within the scope of the authority vested in him or her by Parliament, not to make a new decision. As Brennan J said in Attorney General (NSW) v Quin, quoted at :
… the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise …