Today’s correspondent says:
Some years ago there was a report into Bullying in CFA done at the request of the State government and completed by the state human rights commission.
Because CFA and the Unions argued that only CFA can investigate CFA the report was suppressed from public publication by a lawful court order.
BUT senior CFA officials and their legal staff viewed the report and the complaints from the 563 CFA volunteers who lodged formal written complaints about bullying harassment intimidation assault and sexual assault in CFA.
While the release of the report is banned I would like to know what is the legal requirement for CFA having been informed of these complaints and being aware of the names and addresses of the people who did complain, to act on those complaints and launch their own internal CFA investigation of the complaints ?
This has not happened
None of the 563 CFA members have been contacted by CFA with regards their complaints (to my knowledge).
No CFA counselling or peer support has been offered to any of these complainants, they have only been told that they cannot even have a copy of their own statement to the investigation because it’s suppressed.
What would be the legal requirements for CFA to deal with this?
The report that my correspondent refers to is discussed in my post Report on discrimination, sexual harassment and victimisation in the CFA and MFB to be withheld (October 5, 2018). To correct one issue, the result was not that ‘only the CFA can investigate the CFA’ it was ‘only the CFA or the MFB could request the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to conduct a review of the CFA or MFB’ but at the end of the day it’s correct that VEOHRC could not publish its report.
I would be very surprised if the CFA was informed of the details of the complaints or of the names and addresses of the people who did complain. The decision before the Court of Appeal talked about an online survey. I don’t know the terms on which that was conducted but it may have been anonymous or with a guarantee that identifying information would not be shared with the MFB/CFA. The privacy principles say that information can only be used for the purposes for which it was obtained. If the information was obtained for the purposes of a review by the VEOHRC it would be a breach of privacy to then share that with the MFB or CFA. Without further material, I would very much doubt that the CFA has the information suggested.
The CFA one can infer however knows that there are issues and maybe it does have some identifying information. The CFA has both common law and statutory duties to ensure that the CFA is a safe place for workers and volunteers ((though the duty to volunteers is not express in Victoria as it is in those states that have adopted the Model Work Health and Safety Act). That means if the CFA is aware of a culture of bullying and sexual harassment it has to take reasonable steps to deal with that, but no doubt it claims to do so.
As for approaching individuals that is problematic. Again I’m sure the CFA has a complaints process and provides for an employee/volunteer assistance program. It cannot compel people to use them (just as an employer cannot compel a person to make use of resources to help deal with their PTSD – see Negligence claims relating to PTSD (May 14, 2018)).
Even if someone in the CFA does know of someone who made a complaint or provided information to VEOHRC if they have not complained to the CFA then it would appear to me to be improper to behave as if they have. They may not have lodged a complaint for a reason and you cannot force them to do so.
To give any informed answer to those questions one would need a lot more detail of how the VEOHRC inquiry was conducted, how and what information was obtained and on what terms, how did the CFA and MFB work with VEOHRC during that process etc. My immediate thought is that I very much doubt the VEOHRC either did or could share information about the complainants with the CFA or MFB and if that’s right there can be no legal obligation to follow up with individuals unless and until they make a complaint or reach out to the CFA or MFB.