Huggins v Mullins

The regulatory framework 4The resolution of the current dispute turns upon an understanding of the clauses of the Regulation that govern disciplinary matters in the fire brigade. The relevant clauses are as follows: " Part 4 Disciplinary provisions Division 1 Misconduct 34 Definitions In this Part: nominated officer means the officer nominated by the Commissioner for the purposes of this Part. remedial action , in relation to a firefighter, means any one or more of the following: (a) counselling, (b) training and development, (c) monitoring the firefighter's conduct or performance, (d) implementing a performance improvement plan, (e) the issuing of a warning to the firefighter that certain conduct is unacceptable or that the firefighter's performance is not satisfactory, (f) any other action of a similar nature. 35 Misconduct (1) A firefighter is guilty of misconduct if the firefighter: (a) contravenes a provision of Part 3, or (b)... Division 2 Suspension of firefighters 37 Suspension of firefighter (1) An officer authorised by the Commissioner for the purposes of this clause may suspend a firefighter from duty if: (a) the officer is of the opinion that the firefighter is guilty of misconduct, or (b)... (2) A firefighter may be suspended under subclause (1) whether or not a complaint of misconduct has been made against the firefighter. (3) A firefighter may not be suspended unless all reasonable steps have been taken to ensure that the firefighter has been informed of the reason for the suspension and has been given an opportunity to respond. (4) A suspension under this clause has effect for the period (not exceeding 14 days) specified by the authorised officer and may be terminated at any time by the Commissioner. (5)... (6) An officer who suspends a firefighter must, as soon as practicable, report the suspension and the reason for it to the Commissioner. 38 Commissioner to deal with suspension (1) After considering the report submitted by an officer who has suspended a firefighter and any submission made by or on behalf of the firefighter, the Commissioner may, by order, confirm or terminate the suspension. (2) The Commissioner may not confirm a suspension unless proceedings have been initiated (whether under this Part or otherwise) in respect of the matters giving rise to the suspension. (3) Any suspension confirmed under this clause has effect for the period specified in the relevant order and may be terminated at any time by the Commissioner. 39 Payment during suspension under clause 37 (1) (a) (1) Payment of a firefighter is not to be stopped during a suspension under clause 37 (1) (a) that has not been confirmed, but is to be stopped during such a suspension that has been confirmed, unless otherwise determined by the Commissioner. (2)... Division 4 Inquiries into misconduct 42 Preliminary inquiry into conduct of firefighter (1) The nominated officer may conduct, or may direct another officer to conduct, a preliminary inquiry into a complaint of misconduct against a firefighter. (2) ... (3) A preliminary inquiry is to be conducted in accordance with the Commissioner's Orders or, with respect to any matter for which those Orders do not provide, in such manner as the nominated officer may direct or, subject to any such direction, as the officer conducting the inquiry thinks fit. (4) A formal hearing is not to be held and witnesses are not to be called for examination. (5) The firefighter to whom the complaint relates may make written representations or, if the officer conducting the inquiry so permits, oral representations on any matter relevant to the inquiry. (6) A firefighter who is permitted to make oral representations is entitled to be accompanied by an observer, chosen by the firefighter, while the representations are made. (7) An officer conducting a preliminary inquiry at the direction of the nominated officer must report the result of the inquiry to the nominated officer in writing within the time set by the nominated officer. 43 Charges against firefighter (1) If the nominated officer considers (as a result of a preliminary inquiry or otherwise) that action should be taken against a firefighter in respect of a complaint of misconduct, the nominate officer may charge the firefighter with the alleged misconduct. (2) Any such charge is to be prepared in writing setting out the grounds of the alleged misconduct and a copy is to be served on the firefighter against whom the charge is made. (3) The firefighter, or a duly authorised representative of the firefighter, is to be allowed to read, and to take copies or extracts of, the relevant portions of the departmental file or preliminary inquiry report and any other papers held by NSW Fire Brigades in relation to the charge. (4) The firefighter must, within 10 calendar days after being served with a copy of the charge, report to the nominated officer in writing whether the firefighter admits or denies the charge. (5) If the charge is admitted by the firefighter, submissions may be made to the nominated officer by or on behalf of the firefighter (either orally or in writing) in mitigation of penalty. (6) The nominated officer must send any such submissions to the Commissioner. 44 Formal inquiry (1) If the firefighter denies the charge or does not admit or deny the charge within 10 calendar days after being served with a copy of it, the nominated officer is to conduct, or direct another officer to conduct, a formal inquiry under this clause. (2) The defendant may appear at the inquiry in person or be represented by a barrister, solicitor or agent. (3)... (5) The officer conducting the inquiry: (a) is to conduct the inquiry in accordance with the Commissioner's Orders or, with respect to any matter for which those Orders do not provide, in such manner as the nominated officer may direct or, subject to any such direction, as the officer conducting the inquiry thinks fit, and (b) is not bound by any law, rules or practice of evidence, and (c) may be informed of any matter in such manner as he or she thinks fit, and (d) must cause a transcript to be prepared of the proceedings of the inquiry. (6)... 45 Formal inquiry report (1) An officer conducting an inquiry at the direction of the nominated officer must cause a report of the officer's findings and recommendations, together with the transcript of the proceedings and any document or thing admitted in evidence, to be sent to the nominated officer. (2) The nominated officer may make further recommendations concerning the findings of the inquiry and must inform the defendant of all recommendations made. (3) The nominated officer must cause the report of the findings of a formal inquiry, together with any associated recommendations, transcripts or evidence, to be sent to the Commissioner. (4) Written submissions (including submissions in mitigation of penalty) may be made to the Commissioner, by or on behalf of the defendant, within such time as the Commissioner allows. (5) If the defendant is found not guilty of misconduct, the nominated officer must terminate any suspension of the defendant immediately. Division 5 Disciplinary action by Commissioner 46 Disciplinary action by Commissioner (1) The Commissioner, after considering a report in which a firefighter is found guilty of misconduct and any submission made by or on behalf of the firefighter, may deal with the matter in any one or more of the following ways: (a) by taking remedial action against the firefighter, (b) by giving the firefighter a caution or reprimand, (c) by imposing on the firefighter a fine not exceeding 10 penalty units, (d) by revoking the firefighter's appointment to a position, (e) by demoting the firefighter, (f) by terminating the employment or service of the firefighter. (2) The Commissioner must remove any record of disciplinary action taken under subclause (1) (a), (b) or (c) from a firefighter's personal record if the firefighter has been of good behaviour for at least 2 years since the taking of the action. (3) The Commissioner may suspend disciplinary action taken against a firefighter under subclause (1) (b), (c), (d) or (e) for a period not exceeding 2 years on condition that the firefighter is of good behaviour during that period. (4) If a firefighter fails to do anything that is required of the firefighter by the remedial action taken under subclause (1) (a), the Commissioner may deal with the firefighter in any other manner referred to in subclause (1). (5) The Commissioner may permit a firefighter to resign instead of taking disciplinary action under subclause (1) (f)."

Background 5Acting Deputy Commissioner Hamilton wrote to Mr Huggins on 25 November 2010 pursuant to clause 43(1). He was notified that he had engaged in unacceptable behaviour pursuant to clause 18(1)(g) inasmuch as he was engaged in a physical altercation with another firefighter whilst on duty at Queanbeyan on 13 August 2010 and that he was to be charged with misconduct. The letter referred in detail to the relevant portions of clause 43 as follows: "Pursuant to Clause 43(3) of the Regulation, you or your duly authorised representative are permitted to read, and to take copies of extracts of, the relevant portions of the departmental file or preliminary inquiry report and any other papers held by NSW Fire Brigades in relation to the Charge. Pursuant to Clause 43(4) of the Regulation you must, within 10 calendar days after being served with a copy of the Charge, report to the Nominated Officer in writing whether you admit or deny the Charge. Pursuant to Clause 43(5) of the Regulation should you admit the charge, a submission, in writing, may be made to the Nominated officer by you, or on your behalf, in mitigation of penalty." 6Mr Huggins retained solicitors who replied to Acting Deputy Commissioner Hamilton on 10 December 2010. They informed the Acting Deputy Commissioner that Mr Huggins denied the charge and went on to make the following observations: "Our client has been the subject of a process that has denied him natural justice. He has been denied a proper stream of income as a consequence. He has been suspended indefinitely from the workforce of which he has been a member for nearly 18 years without a blemish. Furthermore he is currently allegedly suspended from duty at a time when his services and his experience would have been a valuable asset to the Fire Brigade in dealing with the current flood crisis enveloping his area of service. Our clients [ sic ] continued suspension is an entirely disproportionate response to a melee instigated by a person who was under the influence of alcohol while on duty, who disobeyed the lawful instruction of his superior officer and station commander, who attacked without provocation or any good reason our client and who, on eye witness accounts, wanted to continue his attack upon our client. It was our client who immediately reported the assault to the police and who has informed the police he wants charges to be pressed against his assailant. A misconduct charge where we would submit the standard of proof should be on the balance of probabilities would not see a misconduct charge, as defined, sustained. Even if it was sustained a reprimand at best would be in the circumstances all that could be said to apply and even this in the circumstances where our client was attacked by a drunk would mitigate [ sic ] against any finding of misconduct against our client. The charge will be strenuously defended while the NSW fire brigade at the same time does not have the best of its qualified and experienced officers in the field at this particularly difficult time." 7Nothing after that letter was sent would appear to have happened until 15 March 2011 when Assistant Commissioner Brown wrote to the solicitors confirming that he had been appointed to conduct " the Formal Inquiry into a charge of misconduct laid against Station Officer Wayne Huggins ". Although initially scheduled to take place in Sydney, it was ultimately heard in Queanbeyan on 13 April 2011. Assistant Commissioner Brown, in his role as the appointed formal inquiry officer, provided his report and recommendations to Deputy Commissioner Emergency Management Nominated Officer Benson pursuant to clause 45(1). Assistant Commissioner Brown found that the charge of misconduct had not been proved and made the following recommendations: "1. The Area Commander informs all staff of 428 Queanbeyan of the outcome of this matter and reinforce expected standards of workplace behaviour. 2. The Zone Commander ensures RFF Wackett is supported while undertaking counselling sessions before returning to duty. 3. SO Huggins and RFF Wackett participate in mediation as soon as possible. 4. The Zone Commander ensures that regular Station management team meetings are facilitated by the Duty Commander." 8However, by his letter dated 24 May 2011, Deputy Commissioner Benson informed Mr Huggins that he took a different view. His letter was relevantly as follows: "I have carefully considered the report and recommendations [of the Formal Inquiry Officer Assistant Commissioner Brown]. I advise that I do not endorse the Formal Inquiry Officer['s] findings and recommendations. I have made further recommendations to the Commissioner in respect of this matter, namely:

1. That the charge of misconduct is proven and that disciplinary action is taken.
2. That the Commissioner demotes you to Station Officer level 1 for a period of six months pursuant to Clause 46(1)(e) of the Regulation. 3.That the demotion commences from the period the suspension is terminated.
3. That pursuant to Clause 46(1)(a) during this six month period you actively undertake counselling regarding workplace and professional standards under the supervision of an Area Commander. Counselling is to be managed through the Director, Human Resources. Pursuant to Clause 45(3) of the Regulation I have caused the report of the findings of the formal inquiry, together with any associated recommendations, transcripts or evidence to be sent to the Commissioner." 9Mr Huggins' solicitors wrote to Deputy Commissioner Benson on 27 May 2011. They drew attention to clause 45(5) and asked whether the nominated officer had immediately terminated Mr Huggins' suspension as required by that provision. Significantly for present purposes, having regard to the respective arguments of the parties before me, that letter also went on to say this: "We further note the provision of further recommendations to the Commissioner is not an option available to you. The power to provide further recommendations under Clause 45 only arises in circumstances where the Formal Inquiry makes a finding of misconduct. In situations where the Formal Inquiry has not made a finding of misconduct, the Nominated Officer is not entitled to, nor has any need under the Regulations to, make any recommendations to the Commissioner. Clause 46(1) of the Regulations only provides the Commissioner with the power to deal with the matter upon a finding of misconduct by a Formal Inquiry." 10A letter of the same date in cognate terms was sent to Commissioner Mullins as well. It foreshadowed an application to this Court for injunctive relief if a reply agreeing to comply with its terms was not received. 11Commissioner Mullins' reply effectively finalised the course of correspondence before these proceedings commenced. His letter to Mr Huggins dated 6 June 2011 is in these relevant terms: "I refer to the recent Formal Inquiry conducted by Assistant Commissioner Mark Brown and the letter sent to you by the Nominated Officer, Deputy Commissioner Emergency Management John Benson dated 24 May 2011.

The Nominated Officer stated in his letter to you that the Inquiry Officer had presented a report of his findings and recommendations together with the transcript of proceedings and documents admitted into evidence by the Nominated Officer (as required by Clause 45(1) of the Regulation).

The Nominated Officer may make further recommendations concerning the findings of the Formal Inquiry (pursuant to Clause 45(2) of the Regulation). I note that the Nominated Officer has informed you of this action in his letter of 24 May 2011. I now intend to make a finding as to whether you are guilty or not guilty of the charge of misconduct preferred against you. Pursuant to Clause 45(4) of the Regulation I invite you to make a written submission in relation to whether I should find you guilty or not guilty of misconduct. Your submission should identify any factual matters you rely on to support your position and any matters that I should consider in mitigation of any disciplinary action under Clause 46(1)(a)-(f) of the Regulation... Before making a final decision on the appropriate action, I will consider the following:

1. All the relevant facts and circumstances concerning the matter which resulted in the charge of misconduct brought against you.
2. The following material: (a) The report of the findings of the Formal Inquiry together with the recommendations, transcript and evidence. (b) The Nominated Officer's report and further recommendations concerning the findings of the Formal Inquiry. (c) Any previous breaches of discipline: and (d) Your service record.
3. Any written submission you choose to make including but not limited to materials in the nature of representations and references." 12Mr Huggins did not make submissions to the Commissioner. He remains suspended.

Consideration 13Mr Huggins was suspended in accordance with Division 2 of the Regulation. This is a procedure that enables prompt action to be taken in certain circumstances. It is only to have effect for a period not exceeding 14 days: clause 37(4). However, the Commissioner may confirm a suspension but only if proceedings have been initiated, "whether under Part 4 or otherwise" in respect of the matters giving rise to the suspension: clause 38(2). It would seem clear that this is what happened here. The relevant proceedings were later commenced under Division 4 of Part 4. 14These proceedings consisted of a preliminary inquiry pursuant to clause 42 followed by the laying of a charge under clause 43(1). Mr Huggins was charged with misconduct under this clause. He did not admit the charge and specifically denied it: clause 43(4). Clause 43(6) contemplates that any submissions that are made to the nominated officer pursuant to clause 43(5) are to be sent to the Commissioner. However, these submissions are only to be made, and sent to the Commissioner, "[i]f the charge is admitted by the firefighter". Mr Huggins did not in this case admit the charge so that the clause 43(5) and (6) procedures did not apply. 15The formal inquiry process contemplated by clause 44 then took place. This occurs in circumstances that include, as in this case, where "the firefighter denies the charge": clause 44(1). Mr Huggins makes no complaint in this case about the formal inquiry or the report produced by the officer who conducted it. Assistant Commissioner Brown sent his findings and recommendations to the nominated officer as contemplated by clause 45(1), who in this case was Deputy Commissioner Benson. Clause 45(2) then contemplates that the "nominated officer may make further recommendations concerning the findings of the inquiry". Deputy Commissioner Benson did this. One of his "further recommendations" was that he did not "endorse the Formal Inquiry Officer['s] findings and recommendations". He caused the formal inquiry findings and report, together with his "associated recommendations" to be sent to Commissioner Mullins: clause 45(3). As indicated above, Mr Huggins did not choose to provide Commissioner Mullins with any written submissions contemplated by clause 45(4) which he invited in his 6 June 2011 letter. 16The reason why Mr Huggins has taken the course that he has is based upon the proposition that the Commissioner has nothing to do, and is not entitled to do anything, pursuant to clause 46(1) because the opening words of the clause include the qualifying expression "after considering a report in which a firefighter is found guilty of misconduct". According to Mr Huggins, no such report exists in his case. The only "report" containing any reference to his "guilt" is the expression of a different view by Deputy Commissioner Benson pursuant to clause 45(2) in his capacity as the nominated officer, sent to the Commissioner in accordance with clause 45(3). Mr Huggins contends that that "report" as referred to in clause 46(1) must and can only mean a formal inquiry report of the sort contemplated by clause 45. It is therefore at the point when Commissioner Mullins wrote to Mr Huggins that Mr Huggins says that the Commissioner's powers had been exhausted and that no further action against him could be taken. Mr Huggins contends that the opening words of clause 46(1) are, in effect, a condition precedent to that occurring and the condition has not been met. 17Mr Huggins goes even further. He challenges both the power and the authority of Deputy Commissioner Benson to "overturn" the decision of Assistant Commissioner Brown. This is because Deputy Commissioner Benson may only make "further recommendations" in accordance with clause 45(2). He has no power as the nominated officer to recommend that the finding of the formal inquiry be changed. Mr Huggins contended that it was the sole purview of the inquiry officer to make the finding of whether or not Mr Huggins was guilty or in other words whether the charge of misconduct had been made out. 18Mr Huggins contended that this was also consistent with the language of clause 45(3) which speaks in terms of the "report of the findings of a formal inquiry" to be sent to the Commissioner. This in turn is said to be consistent with the words in clause 46(1) that speak in terms of the Commissioner, "after considering a report". There is in a case such as the present only one report and that is the formal inquiry report of Assistant Commissioner Brown. Mr Huggins submitted that only Assistant Commissioner Brown can determine whether he was guilty or not guilty of misconduct: see clauses 45(1) and 46(1). In other words, it was clear from the words of clause 46(1) that the Commissioner himself could not make findings of guilt or otherwise. 19The Commissioner contends that this approach is wrong and that the key to a proper understanding lies in the words of clause 45(4). The clause contemplates written submissions other than submissions in mitigation of penalty. These must logically include or extend to submissions on the question of whether or not the firefighter should be found guilty or not guilty of misconduct. If the Commissioner's role were limited in the way suggested by Mr Huggins, these words in clause 45(4) would either be meaningless or otiose. Certainly Commissioner Mullins' own words in his 6 June 2011 letter in which he says, "I now intend to make a finding as to whether you are guilty or not guilty of the charge of misconduct preferred against you" suggest that the Commissioner himself takes the view that his role is not constrained in this way. 20The Commissioner also argued that support for his approach could be found in clause 43. Clause 43(4) requires the firefighter either to admit or deny any charges laid against him or her. In circumstances where the firefighter admits the charge, the nominated officer is not compelled to provide any "report" to the Commissioner, nor is anyone else required to do so. Clause 46 is the only clause dealing with the Commissioner's powers to take disciplinary action against a firefighter. It makes no reference to admitted or uncontested charges. If Mr Huggins' interpretation of the Regulation were correct, the Commissioner would be limited in his ability to take disciplinary action against a firefighter to only those firefighters in respect of whom a report had been produced in which the firefighter had been found guilty of misconduct. Mr Huggins' approach would therefore necessarily mean that the Commissioner could not take disciplinary action against a firefighter who admitted or who did not contest the charge of misconduct. The Commissioner contended in the circumstances that such an outcome would be "absurd".

Disposition 21Clause 46 is headed "Disciplinary action by Commissioner". No part of the clause in terms deals in any way with a process by which the Commissioner can or should process or even consider the question of the guilt or innocence of a firefighter with respect to a particular charge of misconduct. The entire scheme of the Regulation's disciplinary regime is predicated upon a system in the course of which there is a preliminary inquiry into the conduct of the firefighter, followed by the laying of a charge in an appropriate case. A firefighter charged with misconduct can either admit the charge or deny it. If the charge is admitted, the firefighter may make submissions. Importantly for present purposes, the submissions, including, significantly, submissions on penalty, go directly to the Commissioner: see clauses 43(5) and (6). By way of contrast, if the charge is denied, there is in place a system for the conduct of a formal inquiry and the production of a formal inquiry report. In that case the Commissioner is not called upon to exercise any disciplinary function unless the report that he is sent is one in which the firefighter has been found guilty. 22Moreover, the role of the nominated officer is one that is limited to making "further recommendations concerning the findings of the [formal] inquiry". He is nowhere empowered to make a different finding even though he can make recommendations concerning the findings. The nominated officer cannot substitute his or her own finding as to whether the firefighter is or is not guilty of misconduct. That power or task is singularly and conspicuously assigned to the officer conducting the formal inquiry at the direction of the nominated officer. The report is unambiguously described as "a report of the officer's findings and recommendations": clause 45(1). There is no provision, and hence no power, for the nominated officer to substitute his or her "findings" for those of the officer conducting the formal inquiry. Nor is there any provision empowering the Commissioner to substitute a finding of misconduct where the inquiry officer has made a finding that the firefighter is not guilty. 23Furthermore, clause 45(5) provides that the nominated officer must immediately terminate any suspension if the firefighter is found not guilty of misconduct. That provision strongly supports the notion that a finding of not guilty of misconduct by the inquiry officer is intended to have effect unaffected by any "further recommendations concerning the findings of the inquiry" that the nominated officer may decide to make. It also rather supports the contention that such further recommendations, whatever they might be, fall short of a power to overturn or vary the ultimate finding of guilty or not guilty at which the officer conducting the formal inquiry has necessarily by that stage already arrived. In other words, the nominated officer's ability to make further recommendations concerning the findings of the formal inquiry does not also permit or empower him or her to dispense with the mandatory obligation immediately to terminate any suspension then in force. 24I disagree with the breadth of the submission contained in Mr Huggins' solicitors' letter of 27 May 2011 sent to Deputy Commissioner Benson to the extent that it asserts that the provision of further recommendations to the Commissioner was an option that was only available to him in circumstances where the formal inquiry had made a finding of misconduct. Clause 45(2) does not say so. The submission fails to take account of the possibility that the nominated officer, such as Deputy Commissioner Benson, may have wished, in the case of a finding of not guilty, to recommend that the Commissioner take some action favourable to the firefighter concerned. Such a course would not be inconsistent with the sanctity of the finding of the officer conducting the formal inquiry at the direction of the nominated officer provided it fell short of a recommendation purporting to substitute the nominated officer's own finding of guilty or not guilty of the charge of misconduct for that at which the officer conducting the inquiry had arrived. However, this does not affect the outcome of my deliberations in this particular case.

Conclusions and orders 25In my opinion Mr Huggins is entitled to the relief that he seeks. He is currently the beneficiary of interim orders made until further order. The result of my conclusions is that he is entitled to have those, or similar, orders made on a final basis. I would be content to hear the submissions of the parties, if necessary, about the form of orders that should be made. Otherwise I consider that the following orders would be appropriate:

1. The first defendant be restrained by himself, his servants or agents or howsoever otherwise from making or purporting to make any finding as to the guilt or otherwise of the plaintiff in relation to the charge of misconduct, the subject of a Formal Inquiry Report made by Assistant Commissioner Mark Brown dated 27 April 2011.
2. The defendants be restrained by themselves, their servants or agents or howsoever otherwise from taking or purporting to take any disciplinary action against the plaintiff under Division 5 of the Fire Brigades Regulation 2008 in relation to the charge of misconduct, the subject of a Formal Inquiry Report made by Assistant Commissioner Mark Brown dated 27 April 2011.
3. Order the defendants to pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2011