In United Firefighters’ Union of Australia v Fire Rescue Victoria [2025] FWC 892 Commissioner Wilson refused to make orders in a dispute over the suspension of two employees of Fire Rescue Victoria (FRV).

Three FRV employees were subject to adverse findings by Victoria’s Independent Broad Based Anti-Corruption Commission (IBAC). Two of them were Vicky Pyliotis and Stephan Trakas. The conduct occurred in mid-2018 ([1]).  A report was made to IBAC in mid 2018 that one of the employees ‘had accessed the email accounts of MFB executives without authority’ ([6]).   The IBAC inquiry (at [8])

… found deficiencies in MFB’s [the Metropolitan Fire Brigade, a precursor organisation ot FRV] culture and vulnerabilities in its information and communication technology (ICT) systems, contributing to significant corruption risks. A culture of mistrust between management and employees, and barriers for management to address issues, were repeatedly reported to IBAC throughout the investigation.

Several incidents of accessing and sharing information without authority by MFB employees.  On 1 October 2024, 6 years after the events that had been investigated, Vicky Pyliotis and Stephan Trakas were notified that they were to be suspended on pay pending determination of misconduct proceedings.   The United Firefighters Union (UFU) set out a chronology of events (at [9]).   Summarising that chronology:

  1. The events occurred in April 2018 and May 2019.
  2. In June 2018 the referral to IBAC was made.
  3. In January 2019 IBAC decided to conduct an inquiry.
  4. In June 2021 IBAC concluded its inquiry.
  5. On 25 September 2024 IBAC published its report.
  6. On 1 October 2024 Pyliotis and Trakas were advised of their suspension.
  7. On 15 October 2024 the UFU raised a dispute.
  8. On 24 October FRV denied that there was anything wrong in their action in suspending Pyliotis and Trakas but at the same time withdrew the suspensions. On the same day FRV again wrote to Pyliotis and Trakas ‘in which the same officer who had already purported to suspend them —Commissioner Freeman — said that he had formed a “preliminary view … that an appropriate and proportionate interim response to the alleged misconduct is to suspend you from employment with pay, effective immediately”.’
  9. Their suspension on pay was confirmed by further correspondence on 27 November 2024.

The UFU’s dispute alleged that FRV failed to comply with clause 86 on ‘Management of Misconduct’ within the Fire Rescue Victoria (Former MFB) Corporate & Technical Employees Agreement 2017 (the Agreement).  The gist of the UFU argument is set out at [21]. In summary it is:

  1. FRV has failed to state the allegations against the two employees, whereby there has been a failure to comply with clause 86.7, and/or a failure to afford procedural fairness compliantly with clause 86.5;
  2. There is an apprehension of bias, causing a failure to afford procedural fairness compliantly with clause 86.5;
  3. there has been inordinate delay, causing a denial of procedural unfairness, which is inconsistent with clause 86.5; and
  4. the decision to suspend the two employees and investigate their conduct is “a breach of the implied condition that functions in cl 86 are to be used rationally and reasonably”.

Complaint A – Failure to notify the employees of the allegation

At [48] Commissioner Wilson said ‘The UFU’s contention that no dispute arises under clause 86 is contingent on a finding that the suspension and investigation of Mr Trakas and Ms Pyliotis was not brought about by a finding of misconduct.’  The Commissioner quoted the correspondence from FRV Commissioner Freeman that specifically referred to the IBAC findings and that this may constitute misconduct.  Commissioner Wilson said (at [50]):

I am satisfied that this correspondence sets out a concern about each employee which may, if investigated and decided upon properly, meet the meaning of “misconduct” as set out in clause 86.2. The allegation that each was involved in misconduct is clear, as is the reference to the nature of the allegation. The letters are not capable of being construed otherwise.

In deciding to suspend Pyliotis and Trakas the correspondence from FRV referred to the IBAC inquiry.   The letter may not have spelled out the allegations but they had been the subjectd of the IBAC inquiry and report.  Commissioner Wilson said (at [52]-[53]):

The 27 October 2024 suspension correspondence can only be read as stating to the two employees that, following publication of the IBAC Special Report, the findings about them within the report are sufficiently serious to warrant an investigation into their reported conduct.

There is nothing vague about the IBAC findings or FRV’s letter. The correspondence alleges employee conduct within the meaning of clause 86.

Complaint B – apprehended bias

Here the allegation was that Commissioner Freeman suspended the employees on 1 October.  After discussion with the UFU and settlement of a dispute with respect to the terms of the correspondence a fresh decision was made, also by Commissioner Freeman, on 24 October. The UFU’s submission (at [66]) was:

…  essentially that because FRV Commissioner Freeman had been involved in the original correspondence, there might be an apprehension on the part of the fair-minded lay observer of bias, with the possibility that he was so committed to suspending the two employees, he was incapable of altering that view.

Commissioner Wilson found no evidence to support a claim of bias. He said (at [67]-[70]):

In this case, the situation is not that of a decision-maker who has had their decision overturned by another person or tribunal, but rather a decision maker who has, upon receipt of representations from the UFU, chosen voluntarily to retract their original decision. This should in itself be sufficient to satisfy the fair-minded lay observer that FRV Commissioner Freeman’s second consideration of the matter may bring about a different outcome, especially since Mr Trakas and Ms Pyliotis were invited to provide submissions as to why suspension should not occur, but chose not to. Further, neither employee asked for the decision-maker to be a person other than FRV Commissioner Freeman on the basis that they apprehended bias on his part.

In the circumstances, an apprehension of bias on the part of FRV Commissioner Freeman does not reasonably arise. He listened to the complaint about the original correspondence and withdrew it. He later properly put Mr Trakas and Ms Pyliotis on notice that he was considering suspending each from duties, with it being his preliminary view that the suspensions were “an appropriate and proportionate interim response to the alleged misconduct”, together with his invitation to each to provide a response together with any mitigating circumstances. In these regards, the correspondence serves as a notification to each of Mr Trakas and Ms Pyliotis to put forward their best case as to why suspension should not occur. Once received, FRV Commissioner Freeman would have been obliged to consider and weigh what was said against his preliminary view. He had demonstrated a capacity to move away from his chosen path once, and there is no reason he could not be persuaded to do so again.

In the absence of a response from either Mr Trakas or Ms Pyliotis, there were no contrary facts drawn to his attention or opinions voiced. In such a situation, preliminary become final and it would be highly doubtful a fair-minded lay observer would take an alternative view.

For these reasons, I find the fair-minded lay observer would apprehend no bias at any stage of FRV Commissioner Freeman’s decision making over the suspensions; either at the point it was mooted on 24 October 2024, or when it was determined on 27 November 2024.

Complaint C – inordinate delay

The issue here was that it took from 2018 to 2024 for FRV to commence an investigation into the conduct of Trakas and Pyliotis ([71]) but during that time the IBAC had been holding its investigation.  Commissioner Wilson noted the length between the referral to IBAC and the pubication of it’s report. He was not privy to why it took so long.  He says (at [76]):

Why it took IBAC so long to conclude its processes of investigation in respect of Mr Trakas and Ms Pyliotis is not known. All that is known is that the Special Report was published in late September 2024, with FRV acting upon its findings within the weeks that followed.

Any disadvantage caused by the delay between the conduct and the investigation are matters that could be put during the misconduct investigation to the extent that they disadvantage the person in putting their case but the response by FRV was not such a delay to constitute a breach of the workplace agreement.

Complaint D – the decision to suspend was not rational or reasonable

The gist of the argument is that they were directed to remain absent from work from 24 October.  This was, in effect, a suspension without following the procedures in the Agreement.  The Fair Work Commission noted (at [82]) a difference between ‘being “suspended from employment with pay” and being directed to “remain absent from duty” …’  The letter of 24 October was a direction to be absent from duty in order to have time to respond the letter and to prepare their response to the invitation to show cause why they should not be suspended. 

Being directed to “remain absent from duty” is in effect, a form of paid leave for the stated purpose of giving the employees time to prepare their response to the suspension proposal, which as it turns out lasted a month and not the handful of days originally anticipated. ([83]).

The decision to suspend the employees was made on 27 November after they had  been given an extended opportunity to respond and chose not to do so.  ‘On this basis’ said Commissioner Wilson (at [88]) ‘no finding is available that the suspension from work with pay on 27 November 2024 was contrary to the procedures set out’ in the Agreement.

Outcome

The Commission only had jurisdiction to intervene if FRV had failed to comply with cl 86 of the Agreement.  The Commission found that there had been no failure to comply with the relevant provisions.  Accordingly, the suspensions will stand whilst the parties move through the investigation and, if warranted, misconduct proceedings to a final determination.

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.

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