This is another question from ‘a volunteer in the NSW RFS who is under investigation on a disciplinary matter’ and that you are ‘currently stood down’. A look at recent posts will see a number about disciplinary proceedings in the RFS and they all relate to this matter. I cannot, however, keep acting as a pro bono lawyer and commenting on this case. I will give an answer here but I ask my correspondent to to stop sending questions about this matter and I will decline to answer future question.
Having said that, today’s question is:
The RFS has appointed an investigator into the matter. I have told the investigator ,in writing ,that I need certain documents that I want to submit as part of My side of the story.
Am I entitled to some form of “extension “ while I get the documents or do I have to give the investigator my side of the story now and hope to submit my documents later.
The answer to the question ‘Am I entitled to some form of “extension “ while I get the documents…’ is ‘it depends’. To answer that question would require knowledge of what is the alleged misbehaviour, what is the evidence being relied upon, what documents are claimed to exist, why it is claimed that they are needed, why does the RFS resist the claim for those documents, and perhaps more. It is not a simple answer.
Just because a respondent says they ‘need’ the documents does not mean others will agree. As a respondent (ie someone responding to the allegation) my correspondent has to ask for the extension and the decision maker has to consider it. The decision maker may say ‘no’ if they think the matter is urgent, the request is unreasonable, the documents are not relevant and for other reasons set out in my earlier post Discipline in NSW RFS – accessing the original complaint (January 13, 2020).
If there is a request for an extension and it is refused, that gives what we lawyers call an ‘appeal point’. That is if the respondent wants to take the matter to the Supreme Court or the Civil and Administrative Tribunal they can argue that the process miscarried as they were not given the requested extension. In that case an independent referee (the judge or tribunal member) will consider the arguments as to why it was claimed the documents were needed and any counter argument as to why an extension was not granted an rule on whether the respondent or the RFS was right.
The respondent does not ‘have to give the investigator [your] side of the story now…’ They can refuse to take part until the documents are received, but that may not stop the decision maker making a decision and then they would have to take the matter further. If you give ‘[your] side of the story now’ they may find that they agree with you and then you save a lot of hassle. Or you take part but make sure you have noted your claim that you have been disadvantaged by their refusal and decide later what you want to do.
What my correspondent really needs is legal advice from a lawyer that has been engaged and who has considered the particular case.