New South Wales Fire Brigade v Burrows, Allan Raymond
[1997] FCA 1458
•19 DECEMBER 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - Employment - Termination of employment - Firefighter unable to undertake firefighting work as a result of injuries sustained in the course of his employment - Employer offered office duties - Employee failed to undertake such work - Termination of employment on basis that employee was no longer a suitable person to exercise the functions of a firefighter - Whether it was open to employer to terminate on this ground without a prior finding of misconduct - Whether ground established - Procedural fairness - Whether there was a valid reason for the termination connected with the employee’s capacity or conduct or based on the employer’s operational requirements - Whether employee was afforded an opportunity to defend himself against the allegations made.
Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DC and 170DE(1)
Fire Brigades Act 1989 (NSW) - ss 69, 74 and 85
Fire Brigades (General) Regulation 1992 (NSW) - regs 15, 24, 49 and 59
NI 5020 OF 1995
NEW SOUTH WALES FIRE BRIGADES v ALLAN RAYMOND BURROWS
JUDGE: WILCOX J
DATE; 19 DECEMBER 1997
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 5020 of 1995
BETWEEN:
NEW SOUTH WALES FIRE BRIGADES
Applicant
AND:
ALLAN RAYMOND BURROWS
Respondent
JUDGE:
WILCOX J
DATE OF ORDER:
19 DECEMBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The orders made by Judicial Registrar Walker on 6 August 1997 be set aside.
In lieu thereof, it be ordered that the application of Allan Raymond Burrows pursuant to s 170EA of the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 5020 of 1995
BETWEEN:
NEW SOUTH WALES FIRE BRIGADES
Applicant
AND:
ALLAN RAYMOND BURROWS
Respondent
JUDGE:
WILCOX J
DATE:
19 DECEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J: This is an application by an employer, New South Wales Fire Brigades (“NSWFB”), to review a decision of a Judicial Registrar upholding a claim by a former employee, Allan Raymond Burrows, that it contravened Division 3 of Part VIA of the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) in terminating his employment. The decision of the Judicial Registrar was made in the exercise of the jurisdiction of the Industrial Relations Court of Australia. By virtue of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996, the review falls to be conducted in the Federal Court of Australia.
When the review came on for hearing, I was informed by counsel that neither of them wished to supplement the evidence adduced before the Judicial Registrar. Both were content that the Court have regard to that evidence and consider submissions concerning its effect. The evidence is mainly documentary.
The statutory background
Section 65 of the Fire Brigades Act 1989 (NSW) establishes a Department of the New South Wales government with the name “New South Wales Fire Brigades”. The Department is headed by a Commissioner appointed under the Public Sector Management Act 1988. Section 69(1) of the Fire Brigades Act empowers the Commissioner to appoint such persons as may be necessary to provide the members of fire brigades for the purposes of the Act. Section 69(3) states that, except as provided by s 70:
“the Commissioner is to have and may exercise all the functions of employer of the members of fire brigades including (but without being limited to) functions concerning:
(a)dismissal, suspension or reinstatement of employees, and
(b)discipline, promotion and transfer of employees.”
Section 70 relates to representation before industrial tribunals. It is presently irrelevant. Section 74 permits the making of regulations:
“for or with respect to the employment of members of permanent fire brigades and the service of members of volunteer fire brigades, including the conditions of that employment and service and the discipline of members.”
Regulations were made in 1992 that included a regulation dealing with termination of employment. This regulation is in the following terms:
“15(1)The Director-General may at any time terminate a firefighter’s appointment as a firefighter, or as a firefighter of a particular rank:
(a)if the firefighter is no longer medically or psychologically fit to exercise the functions of a firefighter or of a firefighter of that rank; or
(b)if the firefighter is no longer a suitable person to exercise the functions of a firefighter or of a firefighter of that rank.
(2)The termination of a firefighter’s appointment to a particular rank operates to reduce the rank of the firefighter to the firefighter’s previous rank.
(3)The Director-General must cause notice of the reasons for the termination to be given to a firefighter whose appointment is terminated under this clause.”
I understand the office of Director-General is the same office as that now referred to as “the Commissioner”. Questions arise in this case whether reg 15 applied to Mr Burrows’ termination of employment and, if so, whether it was followed. There are also questions under the Industrial Relations Act: whether Mr Burrows’ termination of employment was for a valid reason connected with his capacity or conduct or NSWFB’s operational requirements (see s 170DE(1)); and whether he was terminated for reasons related to his conduct or performance without first being given an opportunity to defend himself against the allegations made (see s 170DC).
The facts
Mr Burrows became employed by NSWFB as a Firefighter on 23 February 1973. In about 1979 he was promoted to the rank of Senior Firefighter. Thereafter, unfortunately, he suffered some physical injuries. The Judicial Registrar uncontroversially described the position in this way:
“In about January 1985, he sustained injury to his left knee and on the 4 March 1991, suffered an injury to his right knee. Both these injuries occurred as a result of his occupation as a fireman and he has undergone four operative procedures, two on each knee. As a result of these injuries he has developed the condition of osteoarthritis which has effectively resulted in him being totally incapacitated as a firefighter. All the medical evidence from both the applicant’s and the respondent’s doctors agree on this prognosis.”
On 23 June 1993 Mr Burrows went on sick leave, pursuant to a certificate supplied by his local general practitioner, Dr Adel Habashy of Bulahdelah. Bulahdelah is a small town north of Newcastle, not far from Mr Burrows’ home on a farm near Wootton. Dr Habashy’s certificate referred to a right knee injury. On the same day, 23 June, Mr Burrows made a workers’ compensation claim in relation to the knee injury.
Between that day and the termination of his employment, 14 December 1995, Mr Burrows was almost continuously on leave of some kind (sick leave, annual leave or long service leave). He underwent numerous medical examinations, some at the request of his employer. He was also subjected to several attempts at physical rehabilitation. The detail of the medical reports and rehabilitation attempts is tedious, but it is necessary to set it out in summary form in order to put the parties’ contentions into context.
On 20 July 1993 Mr Burrows was examined by Dr Robert Burke, a specialist in occupational medicine, located in Newcastle. Dr Burke reported to NSWFB that Mr Burrows suffered degenerative disease of both knees and was “permanently unfit for work as a firefighter but fit for selected duties work as per the certificate ...” The certificate read: “No firefighting duties. Fit for clerical/control room work”.
Ms Kerry Millgate, NSWFB’s Rehabilitation Co-ordinator, referred Mr Burrows, for a second opinion, to a Sydney occupational health physician, Dr John Pearce. Dr Pearce agreed Mr Burrows was permanently unfit for firefighting but thought he was fit for a wider range of duties than those suggested by Dr Burke. He completed a form itemising permitted and restricted activities. The restricted activities were leg movements, bending, lifting, pulling and heavy work.
On the basis of this report, and after discussions with Ms Millgate and the Deputy Regional Commander at Newcastle, Chief Superintendent John Craige, NSWFB Personnel Officer (Operations), Superintendent Douglas Messenger, offered Mr Burrows a position in NSWFB’s Communications Centre in Newcastle. This was a full-time permanent position, at a salary commensurate with that of a firefighter. It involved answering emergency telephone calls and despatching and monitoring firefighting appliances. The position did not require standing, climbing stairs or prolonged sitting.
Mr Burrows accepted this offer; but he had to be trained for the position. Mr Burrows attended training at Newcastle Fire Station between 8 September 1993 and 26 September 1993. He did not report any difficulty in carrying out control room duties during that time. However, perhaps unfortunately, at the end of the training period he went on annual leave until 28 October. He was rostered for duty on 2 and 3 November and worked these two days. However, on 4 November he went on sick leave, where he remained until 4 January 1994. He provided a certificate from Dr Habashy in respect of part of this period. The certificate referred to an injury to the right knee and osteoarthritic changes.
Mr Burrows returned to work at the Newcastle Communications Centre on 5 January 1994. Two days later, he again went on sick leave. Once again he supplied a certificate from Dr Habashy. The certificate mentioned the same problem as before but added a reference to depression. Ms Millgate referred Mr Burrows back to Dr Burke. In a report dated 24 January 1994, Dr Burke stated Mr Burrows had reported feeling “distressed because of the constant pain in his knees” while working. He had also reported poor appetite, insomnia and a short temper. He did not like to work indoors. Dr Burke recommended rehabilitation therapy at the Hunter Rehabilitation Service in Newcastle. This recommendation was adopted. On 8 March 1994 Dr T Woolard of that Service issued a report containing the following conclusions:
“1.This man has a degree of physical impairment which permanently incapacitates him in regard to general duties as a Fireman.
2.He is fit for selective duties - sedentary and semi-sedentary work.
3.Weight reduction programme.
4.Exercise programme reviewed.
In general terms this man remains in a marginal situation regarding his employment as a Fireman and there may be a case for medical retirement if suitable work is not available to him on a long term basis.”
On 24 March Dr Burke wrote a further report recommending a workplace assessment by an occupational therapist “with a trial return to work of selected duties of a suitable type”.
Mr Burrows’ paid sick leave entitlement had expired. On 28 March 1994 he applied to go on long service leave. This was approved. On 13 April Mr Burrows attended the Hunter Rehabilitation Service for a workplace assessment. Ms Elizabeth Turner, an occupational therapist, provided a report that concluded:
“Whilst Allan is clearly very reluctant to return to work as an operator in the Communications Centre, I can find no physical reason which would preclude him from his work.
He would be able to sit, stand and walk around the area as required. He could be supplied with some tailored exercises which would help maintain his knee mobility and muscle strength while at work. On his four days off he could walk around the farm, etc. He was found to be reasonably literate.
The only barrier I could see to his long term employment therefore could be his emotional state. To determine his fitness for work, I would suggest a psychological or psychiatric assessment. If the symptoms described do not have a pathological basis, then I can see no reason why he should not return to work in the duties described.”
Superintendent Messenger decided to offer Mr Burrows a position at the Newcastle Communications Centre of the kind suggested by Ms Turner. On 8 June he wrote to Mr Burrows as follows:
“In keeping with medical opinion held by this Department and the outcome of a workplace assessment, I am writing to offer you another opportunity to take part in a rehabilitation programme.
The Department proposes to provide you with a graduated return to work at the Newcastle Communications Centre. It is envisaged that during this period of time you will be able to further develop your knowledge and skills in this area. Additional training will be provided if this is required.
As a starting point, the Department would like you to return to work on a special day roster; i.e., a Monday to Friday roster. You will be required to work four hours per day for two weeks, and then eight hours per day for a further four weeks. At the conclusion of this time we would expect you to take up substantive position on C Platoon in the Communications Centre on a full-time basis.
The facilities which exist at the Communications Centre will enable you to maintain your fitness and continue your physical rehabilitation. These exercises can be carried out during regular scheduled breaks. Your rehabilitation will be overseen by the Department’s Rehabilitation Co-ordinator, Kerry Millgate or you may choose a local provider.
The Department would like you to commence duty on Monday, 20th June, at 10.00 hours. Please report to Deputy Regional Commander Craige.
I am always available to discuss any concerns you may have, and can be contacted directly on (02) 265 2869.
Please advise me of your intentions.”
Mr Burrows did not report for duty on 20 June or contact Superintendent Messenger. Instead he had Dr Pearce send to Superintendent Messenger a certificate dated 11 May 1994 issued by a psychiatrist, Dr Klaas Akkerman, that read:
“I first saw Mr Burrows in April ‘94, I felt he suffered from a depressive disorder. He states he has never felt like this before. The depression appears to be secondary to his knee-injuries and the conflict at work.
I estimate he will be unable to work for at least another 2-3 months.”
At the request of Ms Millgate, Dr Pearce spoke to Dr Akkerman about a graduated return to work at the Communications Centre. Superintendent Messenger discussed the proposal with Mr Burrows. On 11 July 1994 Dr Akkerman reported:
“Mr Burrows is recovering slowly from his depressive illness.
In my opinion he is now capable of attempting to go back to work in gradual steps. He probably will be able to work 4 hours/day during the next fortnight.”
A return-to-work program was designed by Susan Couting of the NSWFB’s Human Resources Section. This included provisions that Mr Burrows not be required to sit in a chair for periods longer than 20 minutes without a break and that he exercise his knee in the gymnasium for ten minutes every hour. His duties were to be limited to “basically clerical”, including answering fire calls and monitoring responses. The document setting out this program was sent to Mr Burrows for his approval. He signed it on 18 July, his first day back at work, but mentioned other health and fitness matters about which he needed advice. Ms Millgate agreed to provide this.
After only two days, on 20 July, Mr Burrows contacted Superintendent Messenger to say he was “not coping” and would like to proceed on annual leave from 23 July, as he needed a holiday. Superintendent Messenger told him to put his leave application in writing. He did so, stating:
“My psychiatrist, Dr Akkerman, did not suggest that I return to work. He suggested that I attempt to follow NSWFB request to work in Newcastle control room.
In view of events over the past six months, I feel that I have to get away. The fact that I am on annual leave will help to overcome some of my anxieties and depression.”
The application was approved, the leave to be taken from 22 July to 19 August 1994. However, before that time expired, Mr Burrows went on sick leave, claiming constant pain in the knees and depression. About the same time, he lodged another workers’ compensation claim. It was accompanied by a certificate from Dr Habashy of unfitness until 1 October because of “Depression due to long standing knee pain, problems.” The Hunter Rehabilitation Service was apparently not informed of this certificate. The Service prepared a rehabilitation plan that was approved by Ms Millgate on 22 August. However, nothing was done about it as Mr Burrows was on leave.
On 14 September 1994 Dr H Gapper, Director of HealthQuest, countersigned a report prepared by one of her officers, Dr H Jagger, that read as follows:
“I hereby declare that on the fourteenth day of September in the year 1994, I carefully examined the documents of the abovenamed.
I find that he is suffering from osteoarthritis of knee joints; anxiety and depression.
I am of the opinion that he is in consequence unable to discharge the duties of his office. I am further of the opinion that his disability will in all likelihood prove permanent.
I have no reason to suspect that such invalidity may be due to the fault of the officer.”
A copy of this report was sent to Mr Burrows.
On 20 September 1994 Mr J Spiteri, who was acting in Superintendent Messenger’s place during the latter’s absence on leave, wrote to the NSWFB’s Director, Human Resources and Administration, Mr Alf McGrath, recommending Mr Burrows be permitted to retire from NSWFB on the ground of physical incapacity. Mr McGrath sought the advice of Dr Pearce. Dr Pearce reported that, on the basis of medical reports in his possession, he was of the opinion that Mr Burrows “is capable of duties of an alternative nature (such as Communications office duties).”
In the meantime, the Hunter Rehabilitation Service was organising a new rehabilitation program, to commence on 7 October. Also it was decided Mr Burrows should be offered clerical duties in the Newcastle Fire Station Zone Office, rather than the Communications office. It was apparently thought this would be a less stressful environment. The Chief Superintendent at Newcastle made transport arrangements. However, on 6 October Mr Burrows notified the Newcastle Fire Station that “under legal advice he would be unable to attend” on the following day. This generated a letter from Mr McGrath, dated 10 October, to Mr Burrows in the following terms:
“I write to express my concern of your refusal to attend for rehabilitation treatment in Newcastle on 7 October 1994. I am advised that you failed to attend for such treatment at the Hunter Rehabilitation Service on the basis of legal advice.
As you are aware, the Brigade has a policy of attempting to rehabilitate its employees whether or not they are suffering from compensable injuries. It is, in the Brigades’ opinion, both in the interests of the Brigades and its firefighting staff for every effort to be taken to ensure that where rehabilitation is possible, that end is achieved.
It is a reasonable requirement that employees should participate in rehabilitation programs if capable of doing so. You have provided the Brigades with no evidence that you are unable to so participate and your action in refusing to participate and cooperate is viewed most seriously.
As you are aware the Brigades is prepared to provide transport for your appointment at the Rehabilitation Unit. Despite the provision of that transport you refused to attend. In these circumstances you are now directed to make arrangements with the Hunter Rehabilitation Service to attend an appointment within the next two (2) weeks. The Brigades will, if necessary provide transport for you in order that you can attend. If you continue to fail to cooperate in the Brigades’ attempt to establish a rehabilitation program for you, the Brigades may have to consider disciplinary action.”
On 18 October 1994 Dr Gapper sent NSWFB a fax clarifying her earlier certificate. She said it “refers to Mr Burrows’s substantive position as a firefighter”. The fax went on:
“He could undertake alternative duties eg. in an office role; but not control room duties. This would be best introduced on a rehabilitation basis, with support & encouragement for lifestyle changes to optimise his general fitness level.” (Original emphasis)
In response to a request from the Acting Director, Human Resources and Administration, on 29 October 1994, Ms Millgate provided duty statements for three positions thought to be within Mr Burrows’ capabilities; one in Newcastle and two in Sydney. Her letter must have arrived at about the same time as a letter from Mr Burrows, dated 28 October, to Ian MacDougall, Commissioner of the NSWFB. In this letter Mr Burrows said he was “fully willing to attend any rehabilitation programs that NSWFB wishes me to attend provided that NSWFB pays for such programs and provides transport to and from”.
At about the same time Mr Burrows’ union, the United Firefighters Union of Australia (NSW Branch) took up his case, arguing he should be medically retired.
On 1 November 1994, in response to a request from Mr Burrows, NSWFB confirmed in writing it would cover the cost of his rehabilitation at the Hunter Rehabilitation Service. The letter requested him to make an appointment with the Service “in order to continue your rehabilitation in an effort to get you back to work”. Copies of the three duty statements were enclosed.
Apparently Mr Burrows did not respond to this request. So Hunter Rehabilitation Service was asked to contact him. According to a memorandum of 11 November 1994, he agreed to attend; but on 14 November he presented a certificate from Dr Habashy certifying unfitness for work until 19 December 1994 due to “ostearthritis of the knees, depression, multiple knee surgery”.
On the following day, Sue Jedlin, the acting NSWFB Rehabilitation Co-ordinator, contacted Mr Burrows and reminded him of Dr Gapper’s clarifying report that he was fit for clerical duties. According to a diary note apparently made at the time, Mr Burrows became “angry and aggressive and said Fire Brigades is being obstructive and forced Dr Gapper to change her mind”. Ms Jedlin advised Mr Burrows of his right of appeal against Dr Gapper’s opinion and said she would send papers to him.
Notwithstanding all this, Superintendent Messenger again made arrangements for Mr Burrows to attend the Rehabilitation Unit at Newcastle. Mr Burrows claimed that, on account of his medication, he was unable to drive into Bulahdelah to catch a bus to Newcastle. So Superintendent Messenger arranged for taxi transport from Wootton to Newcastle and return. Pursuant to these arrangements, Mr Burrows attended Hunter Rehabilitation Service on 12 December 1994. Heather Jackson, an occupational therapist at the centre, subsequently reported he had been able to complete a 500 metre walk “including slopes and slightly uneven terrain”. He had stood for 20 minutes whilst doing photocopying. Mr Burrows had reported some discomfort while photocopying and had changed position regularly “but said he was able to do this without undue difficulty”. He had sat for 45 minutes continuously whilst performing a computer task. Ms Jackson also mentioned Mr Burrows’ attitude to the positions he had been offered.
“Mr Burrows expressed some concerns in relation to identified positions. He felt that the duties would not provide full-time meaningful work. He said that he joined the fire brigade because he liked active outdoor work and he said that he would not gain job satisfaction from clerical work.
Mr Burrows said that he is most interested in outdoor work.”
Ms Jackson’s conclusion was as follows:
*“Mr Burrows would be physically capable of performing most duties outlined in the position Zone Support Officer except that at present he is unable to drive (medical recommendation).
*Mr Burrows expressed concern about the cuties [sic] not constituting a full time job.
*Clerical duties are not within Mr Burrows work experience and stated area of interest.”
A copy of this report was sent to Mr Burrows with a letter, dated 22 December 1994, in which the NSWFB offered him the position of Zone Support Officer, Newcastle. The letter went on:
“As you have expressed concern about your capabilities to drive from Wootton to Newcastle, the Department is in a position to delay the commencement date of your duties until the 23 January 1995. This will allow you sufficient time to make the appropriate arrangements for your travel on a daily basis between Wootton and Newcastle. Your hours of duty will be flexible to allow you to co-ordinate any public transport times, as indicated in the guidelines.
In conclusion, you are therefore directed to report to Newcastle Zone Office on 23 January 1995, to carry out the duties of the Zone Support Officer. Failure to attend for duty may lead to disciplinary action.”
On 28 December Ms Millgate passed on to Superintendent Messenger a certificate she had received from Dr Akkerman dated 16 December 1994 that stated:
“Mr Burrows has been treated by me for a nervous condition. This condition will probably be aggravated if he is forced to be employed in any other role than as a fireman.”
On 11 January 1995 NSWFB was advised Mr Burrows had appealed to the Medical Appeals Panel against Dr Gapper’s assessment. The effect of lodgment of the appeal was that it was necessary to suspend all administrative action based on the assessment, although Mr Burrows was still expected to report for duty on 23 January. He did not do so. Instead, he wrote a letter to his union, a copy of which was passed on to Superintendent Messenger. The letter read:
“This morning I attempted to attend duty as instructed in Newcastle.
My nervous state was such that I was not able to leave my home.
My pshchiatrist [sic] advised that this would probably occur ...
The Dept has chosen again to ignore medical opinion from a doctor with 12 years medical training and formulate their own opinion.
I have been treated by Dr Akkerman for 10 months for a mental disorder, re NSWFB and today I feel I have slipped back into the depths of depression and anxiety.
Could you please forward this m/c and information onto the Dept. Dr Akkerman advised me to have someone else handle dealings with NSWFB.”
Mr Burrows followed this with a medical certificate from Dr G Gray of Bulahdelah stating he was unfit for work until 16 February 1995. On 25 January 1995 Mr Burrows made application to the Compensation Court for determination of his workers’ compensation claim.
Dr Habashy gave a further medical certificate dated 14 February 1995 for the period to 16 March 1995. On 14 March 1995 he gave a certificate to 16 April.
By letter dated 31 March 1995, the Chairman of the Medical Appeals Panel notified Mr Burrows of the Panel’s decision to disallow his appeal. He said the Panel’s view was that Dr Gapper’s assessment “was appropriate at the time of your examination”.
On 11 April, a copy of this letter having been sent to him, Superintendent Messenger wrote to Mr Burrows formally offering him a position as Zone Support Officer at Newcastle. The letter said:
“A copy of the duty statement of this position is attached for your edification. In regard to all necessary keyboard and computer skills, training will be offered to facilitate your transformation from a purely operational status to one of an Operational Support role.
As per previous correspondence your Manager will be Chief Superintendent John Craige.
You are therefore directed to report to the Newcastle Zone Office at 0800 hours on Monday 1 May, 1995, to carry out the duties of the Zone Support Officer.
Failure to comply with this instruction may lead to disciplinary action including dismissal.”
Mr Burrows did report on 1 May 1995. However, he was dressed in shorts and thongs. He explained to Chief Superintendent Craige he had “put on two stone” and his uniform would not fit him. Chief Superintendent Craige immediately faxed an order for a new uniform and asked another Fireman to train Mr Burrows on data entry. But Mr Burrows said he was having an anxiety attack and produced a medical certificate indicating he was unfit until 16 May 1995. He then walked out of the office.
Mr Burrows subsequently forwarded to NSWFB a series of certificates from Dr Habashy certifying unfitness until 16 October 1995.
On 4 December 1995 Superintendent Messenger wrote a letter to Mr Burrows that was hand delivered to him on 7 December. The letter read:
“I refer to my letter of 11 April 1995, in which I informed you that your appeal to the Medical Appeals Panel against an assessment of Health Quest, had been disallowed, and offering you the post of Zone Support Officer, Newcastle, directing you to report to the Newcastle Zone Office at 0800 hours on Monday, 1 May 1995, to carry out the duties of the Zone Support Officer.
On that day you reported for duty at 0830 hours, with no uniform, being dressed in a pair of shorts, and with thongs on your feet. You offered the explanation that you had put on some two stone, and your uniform would not fit you. The Chief Superintendent at Newcastle arranged for you to fill in a form for the issue of a new uniform. At 0945 hrs, when your training on data entry was to commence, you stated that you were having an anxiety attack, and produced a medical certificate stating that you were unfit for duty until 16 May 1995. You then left the Regional Office.
Subsequently you produced a certificate from a psychiatrist, Dr Akkerman, dated 14 June 1995, stating that you were indefinitely incapacitated to perform office duties.
You have not attended for work at any time since 1 May 1995 nor, it appears, made any attempt to resume work since that time.
The Fire Brigades has now obtained a copy of a report of Dr Rod Milton, Specialist Psychiatrist, who was retained by the solicitors acting for the Brigade’s workers compensation insurers in connection with the workers compensation proceedings you have commenced. From Dr Milton’s report, it would appear that on 1 May 1995 you were fit to perform the duties required of you. The purpose of this letter is to advise you that the Commissioner has decided to terminate your appointment as a firefighter upon the grounds that you are no longer a suitable person to exercise the functions of a firefighter, pursuant to Regulation 15 of the Fire Brigades (General) Regulation 1992.
This letter therefore gives you notice that termination of your appointment will be effected on 15 December 1995.
Following termination of your appointment on 15 December 1995 you will be forwarded the appropriate pay in lieu of notice and any other accrued entitlements.
In the event that you wish to put anything in relation to the proposed termination of your appointment, or put forward any information or materials for consideration, please let me know, and let me have a copy of what you wish to be considered, by 1600 hrs on 13 December 1995.”
Mr Burrows did not respond to this letter but, on 12 December, the NSW Fire Brigade Employees’ Union wrote a letter on his behalf to the Commissioner, Mr MacDougall. The letter said, in part:
“I refer to the letter that was hand delivered to Mr Alan Burrows yesterday morning, a copy of which was forwarded to this Office shortly thereafter.
Clearly, the letter is a notice of termination effective 15 December, 1995.
The Union on behalf of our member, Mr Alan Burrows demands that the Department immediately withdraw the abovementioned termination notice because of the following reasons:
1) the threatened termination is harsh, unreasonable and unjust;
2)the Department has not explained to Mr Burrows under which sub-regulation of the Fire Brigades Act - 1989 - Regulation (hereafter referred to as (“the Regulations”) he will be dismissed;
3)the Department did not given [sic] Mr Burrows a reason why he will be dismissed under the regulations;
4) the Department has not satisfied Regulation 15(3);
5)Mr Burrows has been denied procedural fairness and natural justice in that:
a)he was not warned of alleged ‘unsatisfactory’ service by the Department; &
b)there was no reasonable opportunity for Mr Burrows to explain his situation or justify his reinstatement, nor is there any reasonable opportunity for the Department to satisfactorily assess such submissions;
6)Mr Burrows is presently on unpaid sick leave (pending acceptance of a workers compensation claim) which is fully accounted for by medical certificates issued by both a medical practitioner and a psychiatrist;
7)Mr Burrow’s [sic] is presently involved in legal proceedings against the Department and its insurer with respect to injuries received as a result of his employment;
8)Mr Burrows was issued with a Health Quest Retirement Certificate on 14 September 1994 stating that he is ‘unable to discharge the duties of his office’. The Department has continually refused to implement the most appropriate course of action, namely medical retirement; &
9)the threatened dismissal will exacerbate Mr Burrows current health problems as covered by the abovementioned medical certificate.
The Union takes a very dim view of the Department’s actions in dismissing one of its members on the basis of the effects of his physical and mental disabilities.
Clearly, given the above circumstances the threatened termination is unjustified and is certainly harsh, unreasonable & unjust.
Put simply, natural justice requires that the medical evidence which has come to light since the Health Quest determination (and subsequent appeal) be put to Health Quest for a fresh determination re medical retirement.
Alternatively, the Department should medically retire Mr Burrows on the basis of the Health Quest Retirement Certificate dated 14 September 1994 pursuant to Regulation 15(1)(a).
As stated above, the Union demands an immediate withdrawal of the termination notice. Failure to do so will lead to the Union taking appropriate action, including seeking remedies available to it under Chapter 3, Parts 7 & 8 of the Industrial Relations Act, 1991.”
On 14 December Superintendent Messenger wrote again to Mr Burrows. His letter read:
“I refer to my letter of 4 December 1995 in which I gave you notice that the termination of your appointment would be effected on 15 December 1995 and inviting you to put anything you might wish in relation to that matter.
While you have not submitted any material for consideration, on 12 December 1995 a letter was received by the Commissioner from the NSW Fire Brigades Employees’ Union (FBEU).
It is not considered that the representations made by the FBEU on your behalf affect in any material way the Department’s position.
Consequently, the Commissioner has decided, as foreshadowed in my letter of 4 December 1995, to terminate your appointment as a firefighter upon the ground that you are no longer a suitable person to exercise the functions of a firefighter pursuant to Regulation 15 of the Fire Brigades (General) Regulation 1992.
This letter gives you notice of the termination of your appointment, effective from 1800hrs on Friday 15 December 1995.
From an examination of the Department’s records, there is no money owing to you. A full statement is being prepared by the Department and a copy will be forwarded to you as soon as possible.”
On 29 December Mr Burrows lodged in the Industrial Relations Court of Australia an application under s 170EA of the Industrial Relations Act. He sought reinstatement.
The Fire Brigades Regulations
As I have indicated, a question arises as to the application to this case of reg 15 of the Fire Brigades Regulations. Counsel for Mr Burrows, Mr J H Pearce, points out the Commissioner purported to act under reg 15(1)(b), permitting termination “if the firefighter is no longer a suitable person to exercise the functions of a firefighter”. He argues this ground is not available where a firefighter has been found guilty of misconduct, the reason being that reg 59 makes specific provision for such a case. Regulation 59 reads:
“59(1) The Director-General may penalise a firefighter who has been found guilty of misconduct in any one or more of the following ways:
(a) by giving the firefighter a caution or reprimand;
(b)by imposing on the firefighter a fine not exceeding 10 penalty units;
(c) by demoting the firefighter;
(d) by dismissing the firefighter from the Service.
(2)The Director-General is not to impose a fine if the firefighter has been convicted by a court of an offence arising out of the same facts as the departmental charge.”
Light is cast on the meaning of “misconduct” in this provision by reg 49. It provides:
“49. A firefighter may be found guilty of misconduct if the firefighter:
(a) contravenes a provision of Part 2; or
(b)commits an offence (other than an offence of a trivial nature) in New South Wales or elsewhere, whether or not the firefighter is prosecuted or convicted for the offence.”
Part 2 of the regulations includes reg 24 which relevantly reads:
“24. A firefighter must not:
(a)disobey any lawful order given by a person of senior rank in authority over the firefighter; or
(b)...
(c) ...
(d)without good and sufficient reason, be absent from duty or be late for any parade, drill or other required attendance;
...”
The reason for the prospective termination stated in Superintendent Messenger’s letter of 4 December 1995 was that Mr Burrows was “no longer a suitable person to exercise the functions of a firefighter”. No particulars were supplied but the letter left open an inference that Mr Burrows was perceived to be no longer suitable because he withdrew from work on 1 May 1995 and had not subsequently presented himself for work. Mr Pearce argued this is an allegation he had disobeyed a lawful order given by a person of senior rank (reg 24(a)) or, without good and sufficient reason, absented himself from duty (reg 24(d)); accordingly, the allegation was one of misconduct and should have been dealt with under Part 3 of the Regulations. Mr Pearce said the Court must have regard to the reality of NSWFB’s action, not be distracted by the label it used. In this regard, he cited Piperitis v Transport Appeal Board (1990) 41 IR 325 at 330.
Counsel for NSWFB, Mr A Ashburner, responded to this argument by referring to the Commissioner’s powers under the Fire Brigades Act. He said the power of dismissal conferred by s 69(3) on the Commissioner is unfettered. Mr Ashburner acknowledged that the letters of 4 December and 14 December were written with reg 15(1)(b) in mind; but he said this does not prevent NSWFB justifying the dismissal on any available ground and cited Trigger v Australian Telecommunications Commission (1984) 4 FCR 242. Mr Ashburner also argued non-compliance with the regulations would not invalidate a dismissal; it would merely provide a basis for the employee’s reinstatement by the New South Wales Industrial Relations Commission. He also contended there was no breach of the regulations; this was not a case where the essence of the problem was a failure to obey a lawful instruction or an absence from duty but, rather, a case of an employee having a strong belief that office work is not suitable for him. As Mr Burrows was unfit for anything but office work, Mr Ashburner suggested, it was correct for the Commissioner to conclude he was no longer a suitable person to exercise the functions of a firefighter.
I do not accept Mr Ashburner’s argument that the power conferred on the Commissioner by s 69(3) is unconstrained by the regulations. Section 85(2)(c) of the Act empowers the Governor to make regulations, not inconsistent with the Act, with respect to “the maintenance of the efficiency, discipline, and good conduct of members of fire brigades”. Part 3 of the regulations addresses those matters. I note, also, reg 74(1), already quoted, which provides for the making of regulations, amongst other things, with respect to the discipline of members of fire brigades. Having regard to the statutory provisions for disciplinary regulations, I cannot think it was the intention of the New South Wales Parliament that the Commissioner should be free to dismiss a firefighter at will. The explanation of the broad language used in s 69(3) is that the subsection appears in Part 6 of the Act, which is entitled “Administration” and sets out a scheme for distribution of functions between the Department, headed by the Commissioner, the Public Employment Industrial Relations Authority and the Advisory Council. Parliament was concerned to state that the function of hiring and firing members of fire brigades was that of the Commissioner, not the Authority or Advisory Council. Nonetheless the function of dismissal must be exercised in accordance with the regulations.
I do not doubt it was open to the Commissioner to conclude, in December 1995, that Mr Burrows was no longer a suitable person to exercise the functions of a firefighter. He had once been a suitable person, before he sustained the physical injuries that debarred him from fighting fires. If he had been able, or prepared, to undertake inside work, whether in the Communications Centre or at Newcastle Fire Station, he would have continued to be a suitable person to exercise the functions of a firefighter, albeit not in the front line of combat. But he was not able, or prepared to undertake that work. Herculean efforts were made by Ms Millgate and the Hunter Rehabilitation Centre to maximise his physical rehabilitation and Superintendent Messenger and Chief Superintendent Craige went to great lengths to provide suitable work. Mr Burrows was physically and intellectually capable of doing the work they found for him, but he rejected it because he disliked working indoors. Dr Akkerman may have been correct in saying the requirement to work indoors caused Mr Burrows anxiety or “a nervous condition”; but this explains, rather than contradicts, his unsuitability for continued employment as a firefighter.
I do not think the Commissioner was bound to await a finding of misconduct for contravention of reg 24(a) or (d). Lack of continued suitability as a firefighter is a concept broader than disobedience of a lawful order or absence from duty without sufficient reason. I therefore hold it was open to the Commissioner to terminate Mr Burrows’ appointment pursuant to reg 15(1)(b), but only after complying with common law principles of procedural fairness. Did he do this? Mr Ashburner submitted he did and pointed to Superintendent Messenger’s letter of 4 December 1995. Mr Pearce said he did not and advanced two reasons: first, the letter of 4 December 1995 did not identify the basis of the proposed termination decision, with sufficient clarity to enable Mr Burrows to meet the allegation; second, the letter shows the termination decision had already been made.
The letter of 4 December was poorly worded, but I have reached the view I should reject both Mr Pearce’s submissions. Although the letter deals at some length with the events of 1 May 1995, it is clear those events were not themselves the basis of the proposed termination. Three aspects of those events were mentioned. First, Mr Burrows was to commence training that day but withdrew after an hour or so claiming an anxiety attack and producing a medical certificate of unfitness to work until 16 May. Second, in Dr Milton’s opinion, Mr Burrows was fit to perform the duties required of him that day. Third, this was the last day on which Mr Burrows had attended for work. That Mr Burrows’ subsequent condition was relevant to the matter under discussion, is made apparent by Superintendent Messenger’s reference to Dr Akkerman’s certificate of 14 June 1995.
Against this background, it is reasonably apparent what was meant by the stated ground of termination: Mr Burrows was no longer a suitable person to exercise the functions of a firefighter because he could not, or would not, do the only firefighting work for which he was physically fit. That Mr Burrows understood the letter in this way is suggested by a sentence in his union’s letter of response: “The Department has continually refused to implement the most appropriate course of action, namely medical retirement”. This sentence effectively concedes Mr Burrows was no longer a suitable person to exercise the functions of a firefighter, although this is said to be for medical reasons.
Mr Pearce’s second argument gains its force from Superintendent Messenger’s use of the past tense in saying “the Commissioner has decided to terminate your appointment”. The letter also says “the termination of your appointment will be effected on 15 December 1995”. If the letter stopped there, it would have conveyed the clear impression that a final decision had been made, that nothing Mr Burrows might say could, or would, be taken into account. However, the letter did not stop there. It went on to refer to anything Mr Burrows might “wish to put in relation to the proposed termination of (his) appointment” or “any information or materials for consideration”. Superintendent Messenger invited Mr Burrows to put these before them by 1600 hours on 13 December 1995, plainly to enable them to be considered before a final decision was made.
As I have said, the letter of 4 December was not well worded, but I think it succeeded in informing Mr Burrows of the nature of the provisional decision the Commissioner had made and his opportunity to put forward anything he wished before the provisional decision became final. This was all procedural fairness required. The termination was made in accordance with reg 15(1)(b) of the Fire Brigades Regulations.
In reaching this conclusion, I have not found it necessary to determine whether Mr Burrows’ withdrawal from work on 1 May 1995, and subsequent failure to attend for work, was a result of a propensity deliberately to avoid work, as Dr Milton seems to have thought, or whether it stemmed from a psychological disability connected with Mr Burrows’ knee injuries, as Dr Akkerman believed. This question might be critical to the resolution of a workers’ compensation claim, but it is not material to the question whether, in December 1995, Mr Burrows remained a suitable person to exercise the functions of a firefighter. Whichever was the correct explanation of his absence from work, clearly he did not.
The Industrial Relations Act
As I have mentioned, two issues are raised in respect of Division 3 of Part VIA of the Industrial Relations Act. The first issue arises under s 170DE(1) of the Act. It is whether there was a valid reason for the termination, connected with Mr Burrows’ capacity or conduct or based on NSWFB’s operational requirements. On Dr Milton’s view, the word “conduct” would apply; on Dr Akkerman’s “capacity”. Either way, Mr Burrows was making no contribution towards the work of NSWFB. So the case answered the first limb of s 170DE(1). For the same reason, it also fell within the second limb of s 170DE(1) - there was a valid reason based on NSWFB’s operational requirements. Not only did NSWFB no longer benefit from Mr Burrows’ continued employment, he was absorbing considerable administrative time and effort.
I agree that s 170DC applied to the case. The contemplated termination was directly related to Mr Burrows’ conduct or performance. But I think the letter of 4 December 1995 afforded Mr Burrows an opportunity to defend himself against the relevant issue before a final decision was made. The above discussion about common law procedural fairness, in relation to reg 15, applies equally to s 170DC.
I do not think the termination of Mr Burrows’ employment contravened Division 3 of Part VIA of the Industrial Relations Act.
Orders
It follows from the above reasoning that I disagree with the Judicial Registrar’s conclusion. I propose to set aside the orders made by him and instead order that the application under s 170EA of the Industrial Relations Act be dismissed.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox
Associate:
Dated: 19 December 1997
Counsel for the Applicant: A R Ashburner Solicitor for the Applicant: Toomey Pegg & Drevikovsky Counsel for the Respondent: J H Pearce Solicitor for the Respondent: R L Whyburn & Co Date of Hearing: 20 October 1997
0
0
0