A probationary member from Victoria SES who was a prior member who has applied to return to the SES. They have been advised that their application will not continue as they ‘fail to meet the values of the VIC SES’. The decision may be in response to allegations that relate to conduct during their earlier membership period.  The member left the organisation for unrelated reasons and the allegations were never put at that time. Should they have been put at the time they were made? Is the member entitled to natural justice now ie to be informed of the reasons and to be given an opportunity to respond to those?

First the allegations did not have to be put to the member during their prior service.  Imagine there is some conduct that is a cause for concern. There is thought given as to whether to commence disciplinary proceedings when the member resigns for completely unrelated reasons.  They have left as a member in good standing and for whoever had a concern about their behaviour the problem is now resolved.  Now that the member has resigned there is no process to subject them to disciplinary proceedings nor any need to. 

But what if the person does apply to rejoin and a person who was aware of that prior conduct thinks ‘we don’t want this person in the SES’?

To be a probationary member the person applies to ‘the controller of a registered unit’. The controller must forward the application to the Chief Officer Operations (COO) who must either approve or refuse the application (Victoria State Emergency Service Act 2005 (Vic) s 36).  That section gives no guidance on what basis the COO may exercise their discretion.

Courts are generally only willing to grant remedies for a denial of natural justice when legal rights or significant interest are involved (see Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547 discussed in the post Dysfunction within Victoria SES (July 2, 2020; Castle v Director General State Emergency Service [2008] NSWCA 231).  There is no legal right to join the SES.  Presumably the COO could reject an application for reasons not related to the applicant eg that the applicant wants to join a unit that does not have the capacity to take on more members or they are recruiting to meet a specific need and rank the applicants and take only the top applicant. These things may not be likely but they are possible.  The COO may also take into account an applicant’s reputation eg their social media statements or other information to say ‘this person is not acceptable’.  I would infer that the COO’s decision to accept or reject an application for probationary membership is ‘at large’ and an application could be refused without the need to afford the applicant a chance to respond to whatever is behind the COO’s decision.

Section 36(4) says ‘If the Chief Officer, Operations approves an application, the Chief Officer, Operations must register the applicant as a probationary member of the Service’.  At that point the applicant is a member of the SES.   The purpose of a probationary period is to allow everyone to see if there is a good fit.  The member may decide that the SES is not for them; or the SES may decide that they are not a good fit for the SES.  Where a member has completed their probationary period they must apply to be a registered member (s 37). The inference given the very nature of a probationary period and the fact that ‘full’ membership is not automatic but requires further application, is that at the end of the probationary period the SES, like the member, gets to consider whether membership of the SES is appropriate.

But the position is not crystal clear.  In New South Wales, the State Emergency Service Act 1989 (NSW) s 18AA(2) says ‘Membership of an SES unit may be withdrawn at any time and for any reason’.  That is a discretion that is unfettered and there can be no need to give ‘natural justice’ if there are no limits on why the relevant decision maker can act.  There is no equivalent provision in the Victorian legislation.

In Victoria, the Victoria State Emergency Services Regulations 2017 (Vic) provide details on disciplinary proceedings and the termination of probationary membership in response to member misconduct.  Regulation 21 says ‘This regulation applies if the Authority conducts a hearing and makes a determination under regulation 20(1)(c) to take further action against a registered member or a probationary member’ (emphasis added). One of the actions the Authority can take is to terminate the person’s membership (r 21(2)(g)).

The regulations (r 8, 9 and 10) provide for allegations of misconduct by a probationary or registered member.  Misconduct is defined (r 5) as:

… any of the following—

(a) a contravention of the Act or these Regulations (other than Part 3 of these Regulations);

(b) the commission of an unlawful act by a registered member or a probationary member while on duty;

(c) the commission of an unlawful act by a registered member or a probationary member while not on duty that is likely to harm the operation or reputation of the Service;

(d) the discharge of duties as a registered member or a probationary member in a negligent manner;

(e) behaviour while on duty that is disruptive, uncooperative or incompetent and that disruption, uncooperativeness or incompetence is likely to cause harm to the operation or reputation of the Service;

(f) any form of harassment or bullying of a Service member by a registered member or a probationary member;

(g) any form of harassment or bullying of a person (other than a Service member) by a registered member or a probationary member while on duty;

(h) a failure or refusal of a registered member or a probationary member to comply with—

(i) a lawful command or instruction of the Chief Officer, Operations or a controller of the registered member’s or the probationary member’s unit; or

(ii) a standing order of the Service;

(i) the provision of false or misleading information to the Service or the Authority;

(j) a failure of a registered member or a probationary member to disclose to the Service or the Authority a material change in circumstances that may adversely affect—

(i) the registered member’s or the probationary member’s ability to perform the duties of a registered member or a probationary member; or

(ii) the operation of the Service;

(k) a failure of a registered member or a probationary member to take reasonable care for the registered member’s or the probationary member’s own health and safety while on duty;

(l) a failure to take reasonable care for the health or safety of persons who may be affected by acts or omissions of a registered member or a probationary member while on duty;

(m) a failure while on duty to cooperate with the Authority with respect to any action taken by the Authority to comply with a requirement under the Occupational Health and Safety Act 2004 or the regulations made under that Act;

(n) a failure to cooperate in accordance with regulation 7(3);

(o) the commission of any other act or behaviour that is intended to cause harm to the operation or reputation of the Service;

Where a complaint of misconduct is made it must be communicated to the member within 14 days (r 11).  The regulation then provides details for the investigation of the complaint and the potential outcomes or any investigation.

In the context of the scenario put to me, if there is no suggestion of ‘misconduct’ during the probationary period then any allegation would have to relate the prior time when the person was a registered member. There is no ‘statute of limitations’ in the Act or its regulation so one could infer that having been accepted as a probationary member a complaint could be made of alleged misconduct during their earlier membership when they were a registered member.  Assuming that is correct, then the process including the need to advise the person of the allegation, to conduct a hearing and to accord them the opportunity to respond would all apply. A person may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of a decision made after the conclusion of any investigation (rr 25 and 21(2)).

The difficulty is that r 21 does not say that a person’s membership may only be terminated after the process of a hearing. Rather r 21 says what may happen if the Authority conducts a hearing. It does not say what is to happen in other circumstances. As argued above the whole point of a probationary period is to see if someone is a good fit. In employment law a person can be terminated during a probationary period and can have no recourse to unfair dismissal laws.

It would be bizarre if an organisation like the SES, that provides for a period of probation and then requires a probationary member to apply to become a registered member, an application that must again be accepted or refused by the COO (s 37) cannot determine that the application is to be refused. And it could be refused for grounds other than ‘misconduct’ eg that the applicant is simply not a good fit.  Take for example an applicant who is an avowed racist and who maintains a website advocating for racial discrimination and ‘white supremacy’ but in ways that do not breach any hate speech or other laws.  Holding those views does not make them guilty of misconduct – even if their presence is likely to cause harm to the reputation of the SES the person does not express those views with the intention of causing ‘harm to the operation or reputation of the Service’.  But the Service would probably want to rule them out as a member.

What follows is that if the SES wants to terminate a person’s membership because of allegations of misconduct then they would be expected to go through the processes set out in the regulation. But that may not be the only basis upon which they want to refuse an application for probationary membership, to terminate a person’s probationary membership or refuse an application to become a registered member. 

The question becomes – can a probationary members membership be terminated only if there is an allegation of misconduct, a hearing under r 18 and then a decision by the Authority under s 21, or is that just one process?  Can the COO terminate a probationary member’s membership, or refuse an application for either probationary membership or registered membership on other grounds? 

There is no clear answer to that, and the problem will be testing it.  Assume for example that the COO reports to a probationary member that, although not ‘misconduct’ it has been determined that their ongoing membership is not in the best interests of the SES eg because they ‘fail to meet the values of the VIC SES’ and their application to become a registered member will be rejected and their probationary membership is terminated.  Where does the member take that?

VCAT is a tribunal of limited jurisdiction.  It can only hear matters where authorising legislation says they can.  Regulation 25(1) says ‘A registered member or a probationary member may apply to VCAT for a review of a decision made by the Authority under regulation 21(2), 23(1) or  24(1)’.  If the COO is purporting to act under ss 37 or 37 of the Act or on a power implied by the idea of a probationary period, then that would not be a decision that could be reviewed by VCAT (see Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402 discussed in the post Natural Justice and the SES (September 28, 2015)).

Conclusion

Where there has been an allegation of misconduct, the Victoria State Emergency Services Regulations 2017 (Vic) provide details on how that is it to be investigated, determined and the decisions that can be made after a hearing.  These are consistent with the principles of natural justice, but those only apply where there has been an allegation of misconduct and a hearing.  It does not say that this is the only circumstances in which a person’s membership may be terminated.

The COO has the power to accept or reject an application for both probationary and registered membership and there are no grounds or limits set on that decision.  The COO may also have an implied power to terminate a probationary membership on the basis that seems implicit in the concept of a probationary membership.  The problem is that testing that will be difficult as those decisions would not be subject to review by NCAT so any aggrieved member would need to consider taking action in the Supreme Court would be prohibitively expensive and time consuming and the courts have indicated their reluctance to grant remedies where legal rights are not affected and given there is no right to membership of the SES and volunteering is not the same as employment, it may be difficult to attract the Supreme Court’s interest in resolving the issue.

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 Associationand 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.