Today’s question comes from a volunteer who is facing disciplinary proceedings. On this blog I do not give specific legal advice but can answer generic questions though no-one should act on the information here in a specific case without obtaining legal advice on their own position. I have edited the question to make it sufficiently general. I provide the answer as I’m sure it is of general interest but as I say cannot or should not be relied on in specific cases, other than as a starting point. The question is:
I note that in the public media there any number of fire service personnel who have spoken in a way or behaved in a way that may have breached service standards on public comment.
Can the service choose to take disciplinary action against one member for a possible breach of the service standards mentioned above and ignore another member for a possible breach? Or is the service required to apply the law {service standards} to all?
If the service does decide to ignore a possible breach of the service standards can a member rightly claim unfair treatment –that is “you prosecuted me but not them”?
The question needs only to be stated – ‘can a member rightly claim unfair treatment –that is “you prosecuted me but not them”? – to realise the answer has to be ‘no’.
Let’s use the criminal law as a starting point. We all know that many crimes don’t get punished. Sometimes because police cannot find the offender and sometimes they chose not to prosecute. One person gets a speeding ticket; the next gets a warning. Before the court the question is ‘did the accused commit the offence charged?’ and the fact that someone else, somewhere else, may also have committed the same offence but was not charged is irrelevant to answering that question.
One problem with the suggestion that ‘a member rightly claim unfair treatment –that is “you prosecuted me but not them”’ is that it sets the member up as ‘judge in their own cause’. They are acting as judge to say what they have perceived as similar or the same to their own case is indeed similar or the same.
An investigating officer, whether a police officer or a service officer, has to look at a what happened or what was done, and the rule that may have been breached and ask ‘does that conduct breach the rule?’ That involves all sorts of questions (depending on the rule) of intent, context and in the case of media, a balance of free speech rights against other rights and interests. A person may say ‘that case appears to me to be a possible breach’ but the investigating officer who has indeed investigated and therefore knows more that there was no breach.
Even if there is a breach every enforcement officer has discretion. Police don’t have to arrest everyone who commits an offence, they can (in some cases) issue an infringement notice, or a caution, or take no action. In deciding what to do they of course weigh up the seriousness of the alleged offence, the circumstances of the offending and the offender, what other factors suggest that the person may not do it again. (Many young people will have learned that the real offence is ‘not show proper respect’. If you have a ‘good family’ or come from a ‘good school’ there may be more lenience shown as police think your family or school will set you on the straight and narrow). All of that is considered when making a decision. Again the person who wants to say it’s ‘unfair treatment –that is “you prosecuted me but not them”’ is necessarily saying ‘and our cases are relevantly similar’ when he or she may not know that – again being judge in one’s own cause.
In criminal law what has been done to others is relevant in sentencing, so courts do look at sentencing decisions to give parity – the judge’s talk about the ‘tariff’ for a particular offence. Judges do not have to give the same penalty to each offender because each offender and each offence is different, but they do have to spell out their reasons and in particular if they are giving a penalty that appears tough, or lenient, compared to the accepted ‘tariff’.
But that is the issue. Every case is different. To set up the argument that it’s ‘unfair treatment –that is “you prosecuted me but not them” would be to force the decision maker to investigate those earlier, allegedly similar cases to determine whether it is in fact unfair. Whether that applies in a Service or in the criminal law the system would grind to a halt in irrelevant investigations.
I’m reminded of a joke that I’ll try to retell.
Joe is speeding down the highway and is passed by several cars travelling even faster. The last car in the line is a police car. The driver activates the lights and sirens and Joe pulls over and is issued a speeding ticket. He says to the officer ‘but what about all those other cars that were going even faster?’
The constable sees the fishing rods on Joe’s roof and the fishing kit on the back seat. He says ‘you like to go fishing I see’. ‘Yes’ says Joe. The constable asks ‘and do you ever catch them all?’
The fact that those other drivers were committing a more serious offence, on the same road, on the same day, in front of the same officer, will be no defence for Joe when he thinks about paying or contesting the traffic infringement. If Joe takes the matter to court the only question will be ‘were you speeding?’ not ‘were others speeding and did they get charged too?’
Of course rules have to be interpreted and understood. If there is a pattern of tolerating certain behaviour then that could form an argument that it has been accepted that conduct of this sort is not a breach of the rule; but that is a question of what the rule means which is not the same as the question I was asked.
Conclusion
Can the service choose to take disciplinary action against one member for a possible breach of the service standards mentioned above and ignore another member for a possible breach? Answer ‘Yes’.
If the service does decide to ignore a possible breach of the service standards can a member rightly claim unfair treatment –that is “you prosecuted me but not them”? Answer ‘No’.
If that argument were to succeed authorities would have to prosecute everyone, or no-one. And they’ll never ‘catch them all’ and not all breaches are the same.
Australian Emergency Law 
Certainly AHPRA will take action against an individual for what is considered a breach of Code of Conduct, even though the activity is common place.
The employer (in Health anyway) always claims to be fair and impartial, despite an individual stating certain activity was wide spread.
Once a matter has been reported, a chain of events will commence, that they will follow through with, and disregard any such assertion of ‘common practice’.
And it must be that way. If the claim that ‘everyone does it’ were to succeed law (taking a broad definition to include things like a code of practice or a service standard) becomes binding only by consent. One may want to make arguments for that but it not the way it works in Australia. People (the parliament, a health Board, a Commissioner) are empowered to make rules that bind those that are subject to them. A mass decision to ignore them or interpret them in a particular way does not change the rule.
If there is widespread disregard of the law, or a misunderstanding of what it requires (by either the regulator or those bound to follow the rule) then a prosecution (again widely defined) can help because then the relevant tribunal can identify what the rule requires and those that ignore it can see that what they see as common practice is not according to the rule – that is the aim of ‘general deterrence’ in criminal sentencing. So of course the fact that a ‘certain activity [is] wide spread’ is not a defence and may indeed be a good reason to ‘make an example’ of someone – literally to make an example so others can see that their conduct is not permitted.