Today’s question is
When a volunteer member of the NSW RFS has been stood down as per service standards is there a requirement on the part of the RFS to start an investigation in a given time frame ,IE one week, 3 weeks ,etc.
There is no specific time frame set out in Service Standard 1.1.2 Discipline (v. 4, 21 September 2016). This service standard refers to
- Service Standard 1.1.7 Code of Conduct and Ethics
- NSW RFS Fact Sheet Natural Justice
- Managing Volunteer Discipline*; and
- Conducting a Volunteer Discipline Investigation*
I cannot review the RFS Fact Sheet Natural Justice, Managing Volunteer Discipline* or
Conducting a Volunteer Discipline Investigation as they don’t appear to be on the RFS webpage. I would be surprised if they gave specific time limits.
The RFS Code of Conduct says (Service Standard 1.1.7 Code of Conduct and Ethics, (v. 4.1, 2 December 2016), [3.5]) says:
… all members must:
- act honestly, in good faith, reasonably and with integrity at all times when dealing with members of the community, stakeholders and fellow members;
The reason why any agency would be reluctant to impose time limits is that eveyr case is different. A very serious allegation of an immediate and serious risk to an individual or community may require a member to be suspended pending detailed investigation and consideration of whether matters should be referred to police. Other matters may be clear cut. Where it may be appropriate to start formal proceedings within a week in some cases, it would not be appropriate in others.
Equally one has to consider availability of witnesses, other demands on the RFS (eg senior officers, during the 2019/2020 summer probably have other things on their minds) and the request from the affected member for time to allow evidence gathering and legal advice.
The normal rule would that these have to be done in a timely way. The critical issue from the Code of Conduct and Ethics is the need to act ‘in good faith’ and ‘reasonably’. If proceedings are delayed for improper reasons, eg by not resolving an issue a member remains suspended then that would be a breach of that Code of Conduct.
Accordingly an officer responsible for managing disciplinary proceedings should be acting to move the matter along in a ‘reasonable’ timeframe.
In response to this post I have been provided with the documents:
- NSW Rural Fire Service Natural Justice (April 2009);
- Conducting a Volunteer Discipline Investigation: Guidance on Investigations and Preparing Investigation Reports (v 1, 19 September 2016); and
- Managing Volunteer Discipline: Guidance and Techniques on the Practical Management of Volunteer Discipline (v 1.1 28 October 2016).
These confirm my view that there whilst there are time frames for the amount of notice people are required to have before, for example a hearing, there are no specific time frames proscribed to conclude a matter. The Guidance and Techniques on the Practical Management of Volunteer Discipline says that timeframes should be set out in the terms of reference of any investigation (p. 7) but the critical point is (p. 12, emphasis added) ‘The investigator is responsible for ensuring a sound, timely and procedurally fair investigation …’ (see also p. 19).
The Guidance on Investigations and Preparing Investigation Reports says (p. 10) ‘… the Investigator must be willing to consider applications for extensions of time or the adjournment of an investigation or hearing in appropriate circumstances.’ That sort of flexibility would not be possible if strict time limits applied.
I was also provided with an extract from, and a link to, the Crown Employees (Rural Fire Service) Award. This document is dated April 2012 and has no doubt been updated (see Public Sector Association RFS Award update (August 14, 2019). I’ll assume however that the provisions below remain current. The award as at 17 August 2012 says:
Grievance and Dispute Resolution Procedures
18.1 All grievances and disputes relating to the provisions of this Award shall initially be dealt with as close to the source as possible, with graduated steps for further attempts at resolution at higher levels of authority within the Rural Fire Service, if required.
18.4 The immediate Supervisor or other appropriate officer shall convene a meeting in order to resolve the grievance, dispute or difficulty within two (2) working days, or as soon as practicable, of the matter being brought to attention.
18.5 If the matter remains unresolved with the immediate Supervisor, the staff member may request to meet the appropriate person at the next level of management in order to resolve the matter.
18.6 The person at the next level of management shall respond within two (2) working days, or as soon as practicable.
My correspondent says ‘if we truly were one team would we not all have 2 (two) days to resolve a dispute, being stood down?’
I think they are different matters. The clause quoted about refers to ‘grievances and disputes relating to the provisions of this Award’ not all grievances and disputes. There is significant law in other places regarding workplace discipline and dismissal that would not be caught by these provisions.
Second [18.4] says ‘The immediate Supervisor or other appropriate officer shall convene a meeting in order to resolve the grievance, dispute or difficulty within two (2) working days, or as soon as practicable…’ It does not say that the issue must be resolved at that meeting (and see [18.5] which clearly implies it may not be). The two days is not absolute – it’s ‘two (2) working days, or as soon as practicable…’
Certainly it is true that there are different laws for employees and volunteers because, regardless of anyone’s attempts to bring them together they are in fact different. In this context see Volunteers, unfair dismissal and the SES (June 27, 2019) and the posts that are linked there.
I stand by my conclusion that the time frame to resolve an issue (which is different to some of the timeframes in the service standards regarding the amount of notice to be given) must be ‘reasonable in all the circumstances’.