Mark Frost is an ALS paramedic employed by Ambulance Victoria. In August 2021 he was subject to complaints of workplace bullying or harassment. The allegations involved Mr Frost’s conduct toward an Ambulance Community Officer (‘ACO’). ACO’s are ‘non-paramedic casual employees drawn from the local community who are trained in emergency response and register their availability for set periods of time to attend as required’ ([20]).  The allegations were investigated by an external investigator who found two allegations partially substantiated, two fully substantiated and one not substantiated. 

In July 2022 Mr Frost was asked to show cause why AV should not impose disciplinary sanctions in particular record a first and final warning, require him to undergo further education and transfer him to another station, 350 kms away.  One can imagine that a move to a station 350 kms away requires the paramedic to move house, not an easy task when one has established relationships, emotional and financial investment in one’s home and if the paramedic has a partner with a job and local commitments and children at school.   We were not given the details of Mr Frost’s personal life, but he argued that this action was not reasonable nor justified by the inquiries findings.

A dispute was lodged and ended up in the Fair Work Commission as Mr Mark Frost v Ambulance Victoria [2024] FWC 2237.  It was accepted by all parties that the terms of the Ambulance Victoria Enterprise Agreement 2020 meant that the transfer could only occur in ‘instances of serious misconduct that meets the definition of workplace bullying and or harassment’. There was a dispute over whether the conduct that the investigator found established met that definition ([13]).

The Commission rejected the argument. Commissioner Connolly said that serious misconduct is to be judged objectively and does not depend on ‘wilful’ conduct by the worker.  He said (at [121]-[123]):

What is relevant in this matter is that AV had received an independently prepared report that included a substantiated finding Mr Frost had engaged in conduct that amounted to bullying, amongst other things.

On this basis alone, I am satisfied the Respondent was entitled to considered Mr Frost had engaged in serious misconduct and move to consider the appropriate disciplinary sanction for this conduct, including transfer.

To suggest that bullying, objectively viewed, does not amount to serious misconduct is implausible in my view.

Having determined that the threshold had been met, it was open to AV, as part of its disciplinary measures and to remove ‘Mr Frost from the complainants against him … minimising the risk of Mr Frost engaging in the same or similar conduct again and imposing an appropriate disciplinary sanction to allow Mr Frost to return to his substantive duties. At the time, the only available location that met this criteria outside of the … Region was’ 350kms away. 

Given that AV had the authority to transfer Mr Frost an issue arose as to whether he could appeal that decision. Clause 37 of the enterprise agreement says:

Resource Allocation

37.1        Resources will be allocated to meet service demand.  Employees will be required to perform all work they are competent to perform and accept the requirement for flexibility in relation to work arrangements and mobility between work locations to meet the Employer’s operational and service delivery requirements.

37.2        Where an individual employee has a grievance about a transfer in work location is unreasonable having regard to the employee’s personal and family circumstances and the requirement for excessive travel to attend work, that employee has access to the procedure in clause 11.

Mr Forst argued that cl 37.2 allowed him to rely on the dispute resolution procedures set out in cl 11. The Commission determined that the Agreement only allowed an employee to rely on the dispute resolution clauses if he or she was transferred on the basis of resource allocation but not where the transfer was the result of a disciplinary decision ([126]-[132]).  The Commission, therefore, had no jurisdiction to review the decision by AV.

Although the Commission could not review the decision to transfer Mr Frost to a station so far from his home, it did appear, during the proceedings that it was no longer the case that this station was no longer the only appropriate station to meet the needs of separating Mr Frost from the complainants.  At [96] Commissioner Connolly said that AV:

… have provided a list of further alternative transfer locations. Bearing in mind Mr Frost’s submissions, I consider it appropriate the parties consider working together to identify other alternative locations for Mr Frost to work from to allow him to return to full duties as soon as practically possible once his authority to practice has been completed.

Conclusion

In the discussion we are given only limited detail of the allegations (see [25]) and of Mr Frost’s personal circumstances.   What we can take from the case is:

• Substantiated allegations of bullying and harassment are always likely to fall into the category of serious misconduct.
• Where serious misconduct is established, AV has the power, under the enterprise agreement, to transfer an employee to another station as part of its disciplinary processes.
• Whist an employee has a right to engage the dispute resolution procedures set out in the Ambulance Victoria Enterprise Agreement where AV seeks to transfer them to meet resource allocation demands, that right is not available where the decision to transfer is made as part of a disciplinary outcome.

Whether AV and Mr Frost can come to an agreement with respect to a transfer to a station closer to home will be a matter for them. If not Mr Frost will have to decide whether to accept the transfer and move, commute 350kms to work or, presumably, end his career with AV.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.