Metropolitan Fire and Emergency Services Board v Duggan, Garth & United Firefighters' Union of Australia (259V) - [2016] FWC 5028

1

Fair Work Act 2009 
s.739—Dispute resolution

Metropolitan Fire and Emergency Services Board

v

Garth Duggan and the United Firefighters’ Union of Australia
(C2016/3853)

COMMISSIONER WILSON MELBOURNE, 3 AUGUST 2016

Application to deal with a dispute.

INTRODUCTION

[1] This decision concerns an application by the Metropolitan Fire and Emergency 
Services Board (MFB) for the Fair Work Commission to deal with a dispute pursuant to the 
provisions of s.739 of the Fair Work Act 2009 (the Act). The MFB’s application nominates 
both Mr Duggan and the United Firefighters’ Union of Australia as the respondents to the 
dispute (referred to jointly as the Respondents). It is argued that jurisdiction for the 
Commission to deal with the dispute arises from the Metropolitan Fire and Emergency 
Services Board, United Firefighters Union of Australia, Operational Staff Agreement 20101

(the Agreement).

[2] In short, the dispute concerns the question of whether there is any impediment arising 
from the Agreement to the MFB implementing a decision it has made to terminate the 
employment of a recruit firefighter, Garth Duggan, who commenced employment on 9 
February 2016.2 When the MFB notified him of its intention to terminate his employment, he 
was within a three month probationary period of employment, with that period being a term of 
his contract of employment, as well as being referred to within the Metropolitan Fire 
Brigades Act 1958 (Vic) (the MFB Act).3

[3] The Agreement both provides for the termination of employment as well as 
obligations relating to consultation by the MFB over implementation of change in matters 
pertaining to the employment relationship, as well as procedures for the resolution of disputes 
which enables the Commission to deal with certain disputes in defined circumstances.

[4] Both parties sought representation in the proceedings by a lawyer, relying on the 
criteria within s.596(2)(a) of the Act, insofar as it would enable the matter to be dealt with 
more efficiently, taking into account the complexity of the matter. I was satisfied that this was 
the case, and Mr P Wheelahan appeared for the Applicant and Mr M Pearce SC and Mr D 
Langmead appeared for the Respondents.

LEGISLATION

[2016] FWC 5028 [Note: Appeals pursuant to s.604 (C2016/5027, 
C2016/5571) were lodged against this decision and the order arising from 
this decision - refer to Full Bench decision dated 10 November 2016 
[[2016] FWCFB 8120] for result of appeal.]

DECISION


E AUSTRALIA FairWork Commission










https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB8120.htm
https://www.fwc.gov.au/documents/awardsandorders/html/PR584680.htm


[2016] FWC 5028

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[5] The MFB’s application to the Commission is made pursuant to s.739 of the Act which 
provides jurisdiction to deal with disputes in certain circumstances set out within the section 
and s.738, namely where a “term” of a modern award, an agreement or a contract or Public 
Service Determination allows. Arbitration of a dispute may only be where the parties have 
agreed for that to occur, in accordance with the term. The Commission’s powers to deal with 
a dispute under the section are constrained in the ways set out in the section, and most 
particularly in that which is set out in sub-section (5), such that the Commission may not 
make a decision that is inconsistent with the Act or a fair work instrument applicable to the 
parties.

[6] Sections 738 and 739 provide;

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing 
with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for 
dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term 
that provides a procedure for dealing with disputes between the employer and 
the employee, to the extent that the dispute is about any matters in relation to 
the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that 
provides a procedure for dealing with disputes arising under the determination 
or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC 
to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about 
whether an employer had reasonable business grounds under subsection 65(5) or 
76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement 
or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to 
deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a 
term of an enterprise agreement that has the same (or substantially the same)
effect as subsection 65(5) or 76(4) (see also subsection 55(5)).








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(3) In dealing with a dispute, the FWC must not exercise any powers limited by the 
term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate 
(however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or 
by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with 
this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

RELEVANT AGREEMENT TERMS

[7] The case made by the Applicant, the MFB, is that Mr Duggan is an unsuitable 
employee for ongoing employment past the end of a probationary period that applied to him, 
with its belief about his unsuitability being established within the probationary period for the 
reasons set out below. The MFB argues that it complied with all relevant provisions of the 
Agreement when it made its decision to terminate his employment and that there was neither 
an obligation to consult with him or his union about its decision or any aspect of the decision-
making process, and that there was no impediment to his dismissal within the Agreement’s 
termination of employment clauses.

[8] In contrast, the Respondents, the UFU and Mr Duggan, put forward that the MFB has 
failed to follow the proper processes of the Agreement insofar as it provides processes for 
consultation and termination of employment. In particular, the Respondents argue that the 
MFB is not entitled to terminate for the reasons it has chosen because it failed to consult with 
them about matters which the Respondents say are unilateral alterations to the MFB 
Recruitment Police Criminal History Check Policy. That document, referred to from this point 
as the Police Check Policy, is shown as an attachment to this decision. The Respondents 
argue that the MFB was obliged to consult over any changes to the policy, for reason of the 
Agreement’s consultation provisions.

[9] Termination of employment is dealt with in clause 27 of the Agreement, which is in 
the following terms;

“27. TERMINATION OF EMPLOYMENT

27.1. An employee’s employment may not be terminated unless:
27.1.1. the Employee Code of Conduct has been complied with in accordance with 
clause 26.3;
27.1.2. the employee and the union have been notified that the employer intends to 
terminate an employee’s employment; and
27.1.3. any dispute notified by the employee or the union has been resolved.

27.2. Notice of termination by employer








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27.2.1. In order to terminate the employment of an employee the employer shall give 
to the employee the period of notice specified in the table below:

Period of continuous service Period of notice
1 year or less 1 week
Over 1 year and up to the completion of 3 years 2 weeks’
Over 3 year’s and up to the completion of 5 years 3 weeks’
Over 5 year’s of completed service 4 weeks’

27.2.2. In addition to this notice, employees over 45 years of age at the time of the 
giving of the notice, with not less than two years continuous service, are entitled to an 
additional week’s notice.
27.2.3. Payment in lieu of the notice will be made if the appropriate notice period is 
not required to be worked. Employment may be terminated by the employee working 
part of the required period of notice and by the employer making payment for the 
remainder of the period of notice.
27.2.4. In calculating any payment in lieu of notice, the wages an employee would 
have received in respect of the ordinary time they would have worked during the 
period of notice had their employment not been terminated will be used.
27.2.5. The period of notice in this clause, shall not apply in the case of dismissal for 
conduct that justifies instant dismissal, including inefficiency, neglect of duty or 
misconduct.

27.3. Notice of termination by an employee
27.3.1. The notice of termination required to be given by an employee is the same as 
that required of an employer, save and except that there is no requirement on the 
employee to give additional notice based on the age of the employee concerned.
27.3.2. If an employee fails to give notice the employer has the right to withhold 
monies due to the employee to a maximum amount equal to the ordinary time rate of 
pay for the period of notice.

27.4. Time off during notice period
27.4.1. Where an employer has given notice of termination to an employee, an 
employee shall be allowed up to one day’s time off without loss of pay for the purpose 
of seeking other employment. The time off shall be taken at times that are convenient 
to the employee after consultation with the employer.”

[10] Despite clause 27.1 providing that termination of employment may not occur until the 
“Employee Code of Conduct” has been complied with, with the formation of the Code being 
prescribed in clause 26.3, there is no such code presently in existence.4

[11] Consultation and dispute resolution are dealt with in several clauses and in particular 
clauses 13 and 15. Clause 15, which establishes the requirement for consultation is in the 
following terms;

“15. INTRODUCTION OF CHANGE
Where the employer wishes to implement change in matters pertaining to employment 
relationship in any of the workplaces covered by this agreement, the provisions of 
clause 13 will apply.”








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[12] While the introduction of change clause requires there to be consultation in accordance 
with clause 13, not all of the clause is relevant to this decision. The clause provides the 
following relevant terms;

“13. CONSULTATIVE PROCESS

13.1. Consultation
Consultation means the full, meaningful and frank discussion of issues/proposals and 
the consideration of each party's views, prior to any decision. Committees established 
for the purpose of implementing aspects of this agreement are part of the consultative 
process.

13.2. MFB / UFU Consultative Committee
The parties agree to establish a MFB/UFU Consultative Committee comprising people 
involved in the decision making processes of both organisations. The Committee's 
terms of reference, membership and working arrangements will be negotiated by the 
parties within six months of this agreement being lodged.

13.3. MFB UFU Consultation Committee
13.3.1. The parties are committed to effective consultation and communication 
throughout the MFB. As a demonstration of that commitment, the parties have 
undertaken to establish an MFB UFU Consultation Committee to facilitate the 
implementation of this agreement and ongoing workplace reform.”

[remainder of clause omitted – 13.3.2 to 13.3.7]

[13] Clause 19 sets out a detailed procedure for the resolution of disputes and is in the 
following terms;

“19. DISPUTE RESOLUTION

19.1. This dispute resolution process applies to all matters arising under this 
agreement, which the parties have agreed includes:
19.1.1. all matters for which express provision is made in this agreement; and
19.1.2. all matters pertaining to the employment relationship, whether or not express 
provision for any such matter is made in this agreement; and
19.1.3. all matters pertaining to the relationship between the MFESB and UFU, 
whether or not express provision for any such matter is made in this agreement.
The parties agree that disputes about any such matters shall be dealt with by using the 
provisions in this clause.

19.2. To ensure effective consultation between the employer, its employee(s) and the 
union on all matters, the following procedure shall be followed in an effort to achieve 
a satisfactory resolution of any dispute or grievance:
19.2.1. Step 1 The dispute shall be submitted by the union and/or employee(s) to the 
employee's immediate supervisor.
19.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate 
senior officer.








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19.2.3. Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be 
submitted to the appropriate delegated Industrial Representative of the employer for 
consultation.
19.2.4. Steps 1 - 3 Must be concluded within a period of ten (10) consecutive days. 
Disputes are to be resolved at a local level wherever possible.
19.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally 
submitted in writing to the Manager Employee Relations, setting out details of the 
dispute and, where appropriate, with supporting documentation. The Manager 
Employee Relations shall convene a meeting of the employer, employee(s) and the 
union within a period of one week (7 days) of receipt of such submissions and 
endeavour to reach a satisfactory settlement.
19.2.6. Step 5 If the matter is not settled following progression through the disputes 
procedure it may be referred by the union or the employer to FWA. FWA may utilise 
all its powers in conciliation and arbitration to settle the dispute.

19.3. Notwithstanding the words contained in the above sub-clause, the steps of the 
procedure apply equally to a dispute raised by an employee, the union or Officer in 
Charge

19.4. While the above procedures are being followed, including the resolution of any 
dispute by FWA pursuant to clause 19.2.6, work must continue and the status quo 
must apply in accordance with the existing situation or practice that existed 
immediately prior to the subject matter of the grievance or dispute occurring. No party 
shall be prejudiced as to the final settlement by the continuance of work in accordance 
with this sub-clause.

19.5. This clause shall not apply to a dispute on a Health and Safety issue.

19.6. A dispute may be submitted, notified or referred under this clause by the UFU.

19.7. A decision of FWA under this clause may be appealed. A dispute is not resolved 
until any such appeal is determined.”

RELEVANT FACTUAL BACKGROUND

[14] Evidence in this matter was provided for the Applicant by Gregory Leach, the MFB’s 
Deputy Chief Officer and Executive Director of Learning and Development. Evidence 
provided on behalf of the Respondents included that from Mr Duggan himself, as well as 
Allan Morton, an MFB Senior Station Officer with responsibility for the management of 
major fire stations within the metropolitan district as well as project team responsibility for 
the MFB’s Emergency Medical Response (EMR) program. In addition to this evidence, each 
party has provided written and oral submissions, which include numerous documents. I have 
had regard to all of this material in preparing my decision on this matter.

[15] Mr Duggan began his application for employment with the MFB in 20135 and was 
offered employment in a letter of employment dated 23 December 2015.6 The MFB refers to 
the letter being an employment agreement, with it providing for a three-month probation 
period commencing from the date on which employment commenced, being Tuesday, 9 
February 2016. It was specified within the letter of employment that the conditions of 
employment included the Agreement, the MFB Act and “MFB policies and procedures (i.e. 








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the MFB Workplace Behaviour Policy)”. The same correspondence advised that “Emergency 
Medical Response is a core function of the MFB and accordingly will form part of the Recruit 
Firefighter training and continuation training program.”7

[16] During the recruitment process, Mr Duggan was asked to obtain and provide to the 
MFB a National Police Certificate, which he did. The certificate he provided was sourced 
from Victoria Police, is dated 16 September 2015 and advises that “[a]t the date of issue there 
are no disclosable court outcomes recorded”. The certificate states that the reason for the 
check was for “Employment – Emergency Services: Firefighter” and also provides this 
disclaimer;

“Legislation in various states and territories and the Commonwealth of Australia 
restricts the information that can be disclosed about a person's court history unless 
specific exemptions apply under law. These legislative exemptions can include specific 
types of employment, voluntary work, licences or membership of a profession. 
Therefore, the information provided may not include all of the person's convictions or 
findings of guilt by a court. Generally, the person is not required by law to disclose 
these spent convictions unless the type of employment, position, licence or 
professional membership is exempt under the relevant laws. The term "no disclosable 
court outcomes" should be interpreted as meaning no police record.

This check has been conducted on the basis of the name and date of birth details 
supplied by the person and given above. Although every care has been taken to ensure 
the accuracy of the check, it cannot be guaranteed that the information provided relates 
to the person named. The information is current at the date of issue of the certificate 
and should not be taken to be a complete record of the person's disclosable court 
outcomes beyond that date.”8

[17] Mr Leach’s evidence about the recruitment process also states that;

“Mr Duggan was also asked whether he had been arrested since he turned 18, and 
whether he had been charged by the police with committing a crime, and responded 
that both were "true". The MFB does not have any record of any further inquiries 
being made at that time with Mr Duggan in relation to any criminal charges which had 
been made against him.”9

[18] The employment offer came after Mr Duggan had provided to the MFB the National 
Police Certificate. After commencing employment Mr Duggan was the subject of adverse 
findings against him by the New South Wales Civil and Administrative Tribunal (NCAT), 
and those findings became known to his work colleagues. 

[19] The NCAT decision10 concerns Mr Duggan’s practice as an osteopath in New South 
Wales. It is uncontroversial that the decision relates to the person who is the subject of these 
proceedings and now employed by the MFB. Relevantly, the NCAT decision records that;

 Its decision was concerned with complaints by the New South Wales Health Care 
Complaints Commission (HCCC) of unprofessional conduct and professional 
misconduct and noted that an earlier application by Mr Duggan to have the enquiry 
terminated was denied,11 with that decision also being published in a formal NCAT 
decision, dated 27 November 2015.12








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 The complaint that was the subject of the decision was lodged with the Tribunal on 9 
June 2015 and was the subject of directions hearings on 15 and 29 January 2016.13

 Mr Duggan was first registered as an osteopath in 2005 and he was the subject of 
complaints as follows; 

“2 The complaints relate to incidents involving three female patients in 
late 2009 and early 2010. The complaints allege clinically unwarranted 
touching of the pelvic and pubic regions of all three patients, and vaginal 
penetration of two of them, in association with extremely poor, or non-existent, 
history taking, consent and treatment documentation practices. Each of the 
women reported feeling uncomfortable and distressed about what had occurred.

3 Two of the patients were university students at the time of the 
incidents; one of whom was at the time undertaking practical placement at Mr 
Duggan’s osteopathy practice under Mr Duggan’s supervision.”14

 Mr Duggan had earlier been charged with a number of counts of indecent and sexual 
assault relating to the patients who are the subject of the above complaints, as well as 
other female patients. Those charges were laid in 2010 and Mr Duggan was 
acquitted in the subsequent criminal proceedings in 2012.15

 Mr Duggan was self-represented in the NCAT proceedings and was given an 
opportunity to appear in the hearings but chose not to do so while also not conceding 
the complaint or any of the particulars. The Tribunal proceeded to determine the 
matters before it in the absence of Mr Duggan.

 The Tribunal found that all of the particulars were established to the required 
standard,16 with the Tribunal making reference to the standard of proof for civil 
matters set out within Briginshaw v Briginshaw,17 noting that as such it is not a 
“third standard or proof” to the civil and criminal standards, but rather a question of 
quality or sufficiency of the evidence necessary to discharge the civil standard.18

 As a consequence the Tribunal’s Order included that Mr Duggan;19

 be reprimanded in the strongest terms “for his failure to adhere to the basic 
elements of informed patient consent”;

 have his registration as an osteopath cancelled from the date of the Tribunal’s 
Order with him then being ineligible to return to the register for six years;

 be prohibited “from providing any “health services” as defined by s 4 of 
Health Care Complaints Act 1993 (NSW) until such time as a reinstatement 
order is made”; and

 be subject to a costs order in favour of the Health Care Complaints 
Commission.

[20] The HCCC complaints to NCAT were started in June 2015, with evidence being 
served on Mr Duggan in August 2015 and him responding in August, September and October 
2015, including by initiating his application to terminate the proceedings, and providing oral 
submissions,20 however, Mr Duggan submitted to the MFB that he was informed of the 
proceedings “in late 2015”,21 which is improbable. He was plainly aware of the proceedings 
from mid-2015.

[21] In the course of the NCAT directions hearings in January 2016, Mr Duggan indicated 
to the Tribunal that he would neither defend the proceedings nor appear before the Tribunal, 
however NCAT record that Mr Duggan did not concede the complaints or any of the 








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particulars.22 The NCAT proceedings took place in Mr Duggan’s absence on 18 and 19 
February 2016, after he had commenced employment with the MFB.

[22] The NCAT decision was published on 17 March 2016. Mr Duggan became aware of 
the decision within a week of it being published,23 but chose not to inform the MFB either of 
the proceedings or of the decision. The MFB’s evidence is that Mr Duggan did not bring the 
NCAT decision to the MFB’s attention when it was handed down on 17 March 2016, or at 
all.24 Instead, the NCAT decision became known to the MFB on or about 29 April 201625

when, on Mr Leach’s evidence, “a group of recruit firefighters who were undertaking the 
recruit course alongside Mr Duggan notified their Recruit Course Coordinator, Arran Dixon, 
that the recruits had conducted an internet search of Mr Duggan and discovered that he had 
recently been the subject of a decision [of NCAT]”26. Following the decision being brought to 
Mr Dixon’s attention, Mr Leach believes (and Mr Duggan does not dispute) that “Trent 
Curtin (Assistant Chief Fire Officer Director Operational Training, MFB) contacted David 
Hamilton (UFU President and MFB Senior Station Officer) by phone and raised the issue of 
the NCAT Decision with him.”27

[23] There is no evidence that at any time prior to 29 April 2016, any person within the 
MFB sought further information from Mr Duggan about his response that he had both been 
arrested and charged on a criminal matter since turning 18 years of age.

[24] The matter then became the subject of a dispute between the parties, including a 
formal dispute for the purposes of the Agreement notified to the MFB by the UFU on Mr 
Duggan’s behalf. The terms of the dispute as notified by the UFU included the following to 
Mr Dixon over the name of the UFU’s Secretary, Mr Marshall;

“Dear Aaron,

I hereby notify you of a dispute in accordance with clause 27 and clause 19.

The dispute is regarding recruit firefighter Garth Duggan including but not limited to, 
the failure to undertake the proper process in the enterprise agreement, consultation, 
change, policy and termination.

I remind you of the provisions of the dispute resolution process, i.e. that the status quo 
remains that being recruit firefighter Duggan continue to be employed by the MFB.
Clause 27 also provides that no employee shall be terminated while the dispute 
remains unresolved.

Yours sincerely
Peter Marshall”28

[25] On 5 May 2016 Mr Duggan was sent correspondence from Mr Leach, which informed 
him that the MFB considered it was not appropriate to continue the probationary period of his 
probationary employment beyond the date on which was it scheduled to expire, namely 9 May 
2016, and that Mr Duggan was to be stood down and required not to report for duty until 
further notice. The correspondence set out the grounds upon which the MFB based its 
preliminary view that it was not appropriate to continue with his employment beyond the 
expiry of his probationary period on Monday, 9 May 2016, which included;29








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 That Mr Duggan did not meet the standard of personal integrity that is an inherent 
requirement of being a firefighter;

 That the MFB could not “conscionably hold” Mr Duggan out to the community or 
other staff members as being a person who could hold the degree of trust expected of 
a firefighter;

 That the NCAT decision meant that he would be unable to safely perform the 
inherent requirement of providing emergency medical assistance to members of the 
community; and

 That, given the conclusion of NCAT, his continued employment with the MFB 
posed a risk to health and safety not only of other MFB employees but also members 
of the public and potentially to himself.

[26] Mr Duggan was also requested through the correspondence to provide a written 
response to the MFB about its beliefs, which he did on 8 May 2016. The response consists of 
a short covering email, together with a more extensive submission. The submission;30

 gives background to the professional complaints made against him and the NSW 
District Court trial;

 traverses his move, after the trial, to Victoria, his employment with another 
employer, and then his application for employment to the MFB;

 records that “in late 2015” he was informed the NSW HCCC would commence 
action against him in NCAT;

 sets out his interaction with the Tribunal, including that he requested removal of his 
name from the osteopathic register and made undertakings that he would not “seek 
registration, and that he had no intention to work as an osteopath or in any other 
health care profession”;31

 provides that Mr Duggan informed NCAT that he did not have the financial 
resources to contest the NCAT proceedings and that he “would not be making 
submissions and would consent to any orders the Tribunal made”, but “did so with 
no admission of wrongdoing or any impropriety”;

 put forward in relation to his new employment, that;

“When advised that the hearing was scheduled for 18 and 19 February 2016, he 
indicated to the NCAT that he was not available to attend the hearing as he was 
undergoing the recruits course, and sought an adjournment. This was 
refused.”32

[27] The submission to the MFB also records that Mr Duggan applied to NCAT for the 
proceeding not to take place, as there was no public utility for the proceedings given he 
sought to have his name removed from the register and had given the undertakings referred to. 
The submission claims that his application “was supported by the Australian Osteopathic 
Association” and notes that the Tribunal refused his application.33

[28] The submission criticises NCAT’s decision and how it came to its conclusions, 
arguing;

“26. It is disturbing that NCAT came to its conclusions based on transcript and witness 
statements which were four years ago, were untested in the context of the proceeding it 
was dealing with, and where Mr Duggan was not able to be heard and was not heard. 
The HCCC expert (four years after the trial) second-guessed the evidence of the 








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experts at the trial (see [10] of the decision) and of course her statement and evidence 
was not able to be tested by Mr Duggan.

27. There is no explanation as to why the HCCC took over three years to bring the 
proceeding, which meant that it was 6 years after the incidents occurred.”34

[29] Further information was sought by Mr Leach from Mr Duggan on 9 May 2016 
because an electronic file he had provided could not be opened, with Mr Duggan responding 
on the same day. The further response put forward material about the misconduct complaints 
that can only be regarded as a defence of his professional conduct, as well as a document from 
a lecturer in osteopathy supporting some of Mr Duggan’s contentions.

[30] On 6 May 2016, Mr Duggan made an application to NCAT to set aside the original 
decision. That application has progressed to the point of a directions hearing on 8 May 2016 
in which a hearing was set down for 29 September 2016, together with directions for the 
filing of any amended application, submissions and witness evidence.35

[31] By 24 May 2016 the MFB had decided that Mr Duggan’s employment should be 
terminated and forwarded him a letter to that effect, and Mr Leach telephoned Mr Duggan
about the decision and his reasons.

[32] Successive exchanges between the UFU and the MFB failed to resolve the matter.

[33] Since the UFU concedes that the dispute is properly before the Commission,36 it is 
unnecessary to consider in detail the process by which the dispute has been brought to the 
Commission. While that is the case, the MFB plainly considered at the time that it wrote to 
Mr Duggan advising of its intention to dismiss him that it was in dispute with the UFU and 
Mr Duggan about its intentions. In that correspondence to Mr Duggan, Mr Leach refers to 
there being a dispute and the commencement of proceedings in the Fair Work Commission to 
resolve it. The correspondence to Mr Duggan dated 24 May 2016 is in the following terms;

“Dear RFF Duggan

Termination of employment

I refer to my letter to you dated 5 May 2016, and to your response dated 8 May 2016.

I confirm that MFB has decided to terminate your employment. In making the decision 
to terminate your employment, MFB has considered the material provided by you in 
your email dated 8 May 2016. Your explanations and the further material provided by 
you did not alleviate our concerns that you are not suitable to be an MFB firefighter.

As a firefighter, you would be in a position of power over vulnerable members of the 
public. As such you would necessarily be invested with a significant amount of trust 
by both the MFB and the public. Of particular concern is the fact that NCAT has 
found you to be guilty of professional misconduct and has prohibited you from being 
registered as an osteopath for 6 years. NCAT has found that you are "manifestly 
unaware of, or indifferent to the core tenants of informed consent in practices such that 
[you pose] a substantial risk to the health of the public" and expressed concern about 
any one-on-one assessment or treatment undertaken by you "in any health field 








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requiring a consent process". (Health Care Complaints Commission v Duggan (No.2) 
paragraph 113).

The two professions of osteopath and fire fighter have a number of common features. 
These include the necessity for a high level of trust between the professional and the 
member of the public, the likelihood of physical contact in circumstances where the 
person is in a vulnerable state, the performance of the role without detailed 
supervision, and the necessity of the professional's employer to have confidence that 
the professional can be trusted

In light of NCAT's findings, the MFB does not consider that you are a person in which 
it can have the level of trust and confidence that is required of a firefighter, including 
in relation to the Emergency Medical Response component of the role, or that you 
meet the standard of personal integrity that is an inherent requirement of an MFB 
firefighter.

In accordance with clause 27.1.3 of the Metropolitan Fire and Emergency Services 
Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (the 
Agreement), the MFB will not implement this decision until the dispute between the 
parties has been resolved. Please find attached Form F10 Application for the Fair 
Work Commission (FWC) to deal with the dispute in accordance with Step 5 of the 
dispute resolution procedure at clause 19 of the Agreement, which we intend to file 
with the FWC today in the interests of resolving the dispute as soon as possible.

Yours sincerely,

Greg Leach
Deputy Chief Officer
Executive Director Organisational Learning and Development”37

THE APPLICANT’S DRAFT DETERMINATION

[34] The MFB’s Draft Determination for these proceedings, filed in accordance with 
directions from the Commission, is in the following terms;

“The Commission finds that there was no failure by the MFB to follow any process 
mandated by the Metropolitan Fire and Emergency Services Board, United 
Firefighters' Union of Australia, Operational Staff Enterprise Agreement 2010 with 
respect to the termination of Mr Garth Duggan’s employment and accordingly 
determines that:
1. The dispute the subject of this proceeding is resolved.
2. The decision to terminate the employee’s employment can therefore now be 
implemented by the MFB.”38

[35] For the purposes of context, it should be noted that the full name of the MFB, as used 
in the Draft Determination, is the “Metropolitan Fire and Emergency Services Board”, which 
may be abbreviated in some documents to “MFESB”.

CONSIDERATION








[2016] FWC 5028

13

[36] The nature of the alleged dispute and the findings sought by the Applicant require 
consideration of whether the Commission has jurisdiction to deal with the matter and, if so, 
the correct approach to be taken in relation to deciding upon the relief sought by the MFB.

Jurisdiction to deal with the dispute and its characterisation

[37] Clause 19 of the Agreement sets out the dispute resolution procedure. The scope of the 
clause is expansive, with the procedure applying to “all matters arising under this agreement” 
with the clause then specifically identifying that such category includes “all matters for which 
express provision is made in this agreement”, “all matters pertaining to the employment 
relationship, whether or not express provision for any such matter is made in this agreement” 
and “all matters pertaining to the relationship between the MFESB and UFU”.

[38] Clause 19.2 then sets out a procedure which “shall be followed in an effort to achieve 
a satisfactory resolution of any dispute or grievance”. The last element of the procedure 
allows for disputes to be brought forward to the Fair Work Commission provided the dispute 
is not settled through progression through earlier steps in the disputes procedure, in which 
case the Commission “may utilise all its powers in conciliation and arbitration to settle the 
dispute” (cl. 19.2.6).

[39] As referred to earlier, the parties agree the MFB’s application is properly before the 
Commission.

[40] The MFB, through its application form and submissions, advance that the dispute has 
been resolved and that there has been no failure by the MFB to follow any process mandated 
under the Agreement in relation to Mr Duggan’s employment. Further, the MFB have put 
that, because that is the case, and consistent with the Agreement’s dispute resolution, 
termination of employment and consultation clauses, the decision to terminate Mr Duggan’s 
employment can now be implemented. In effect then, the MFB characterises the dispute 
involving the Commission’s utilisation of “all its powers in conciliation and arbitration to 
settle the dispute” (provided for within clause 19.2.6, step 5) as being a determination 
pursuant to clause 27.1.3 that “any dispute notified by the employee or the union has been 
resolved”.

[41] The MFB’s Draft Determination for consideration by the Commission is in terms 
similar to the content of the original application form.

[42] The dispute as notified by the UFU to the MFB, initially on 30 April 2016 and 
reiterated in its formal correspondence on 10 May 2016, is about a “failure to undertake the 
proper process in the enterprise agreement, consultation, change, policy and determination”.39

[43] On the basis of the foregoing, and having regard to the contentions of both parties, as 
well as the MFB’s Draft Determination, I consider that the proper characterisation of the 
dispute before me is as set out below;

1. Whether or not there was a failure by the MFB to follow any process mandated 
by the Agreement with respect to the termination of Mr Duggan’s 
employment;

2. Whether the dispute the subject of this proceeding is resolved; and








[2016] FWC 5028

14

3. Whether the decision to terminate the employee’s employment can therefore 
now be implemented by the MFB.

The Commission’s approach to dealing with the dispute

[44] When the Commission deals with disputes under s.739, it does not undertake an 
exercise of judicial power but instead exercises a power of private arbitration, with that power 
deriving from the parties’ agreement to submit their differences for decision by a third-party. 
The resultant arbitrator’s award is not binding of its own force, but instead its effect depends 
on the law which operates with respect to it.40 It is accepted that while not exercising judicial 
power, the Commission “may legitimately form and act upon opinions about legal rights and 
obligations as a step in the exercise of its own functions and powers”.41

[45] A useful summary of the applicable considerations in matters of this kind, and of the 
powers to be exercised by the Commission and their boundaries, was articulated by 
Commissioner Saunders in Construction, Forestry, Mining and Energy Union v Mt Arthur 
Coal Pty Ltd;42

“Legal principles concerning the proper characterisation of the dispute

[6] The test under s.739 of the FW Act is whether the dispute settlement procedure in 
the enterprise agreement “requires or allows” the Commission to deal with the dispute. 
It is therefore necessary to look at the text of the dispute settlement procedure, 
understood in light of its industrial context and purpose, to determine whether the 
dispute, properly characterised, falls within it.43

[7] The scope of a dispute settlement procedure in an enterprise agreement should not 
be narrowly construed; “to do so would be contrary to the notion that certified 
agreements are intended to facilitate the harmonious working relationship of the 
parties during the operation of the agreement.”44

[8] In characterising the nature of a dispute the Commission is not confined to the 
application filed to deal with the dispute.45 The entire factual background is relevant, 
and may be ascertained from the submissions advanced by the parties on the question 
of jurisdiction.46 Further, a dispute may evolve during proceedings in the Commission. 
It may therefore be necessary in some cases when ascertaining the character of a 
dispute to have regard to both the nature of the dispute alleged in an originating 
application and the factual circumstances as they evolve.47

[9] It is also important to note that the character of the dispute is distinguishable from 
any relief which may be sought, or granted, following an arbitration of the dispute.48

However, the relief sought may cast light on the true nature of the dispute in some 
cases.49

[10] If the Commission has jurisdiction to deal with the dispute, the nature of the relief 
that the Commission may grant in such circumstances will depend on the limitation in 
s.739(5) of the FW Act50 and the agreement of the parties as recorded in their 
enterprise agreement, provided that such relief is reasonably incidental to the 
application of the Enterprise Agreement to which the dispute relates.51” (Original 
references)








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[46] The same matter considered the Commission’s role as a private arbitrator;

“[18] When the Commission is arbitrating a dispute pursuant to a dispute settlement 
clause in an enterprise agreement it is not exercising judicial power, but is instead 
exercising a power of private arbitration.52 As a private arbitrator, the Commission is 
authorised to make decisions as to the legal rights and liabilities of parties to whom the 
enterprise agreement applies.53 That involves deciding “all questions both of law and 
of fact”54 that arise in the dispute, subject to any limitation on power in the dispute 
settlement clause55 and a requirement not to make a decision that is inconsistent with 
the FW Act, or a fair work instrument that applies to the parties.56” (Original 
references)

[47] In Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, 
Postal, Plumbing and Allied Services Union of Australia,57 decided shortly after 
Commissioner Saunders’ analysis in CFMEU v Mt Arthur Coal, the Full Court of the Federal 
Court of Australia considered in detail the Commission’s role under s.739. The Full Court’s 
judgment in that matter held the following matters of relevance;

“29. Turning to s 739 of the FW Act, it would be a mistake to seek to identify its 
purpose solely through the prism of s 186(6): the section applies to other situations as 
well. But s 739 is concerned with the role of the Commission under a dispute-settling 
term in an enterprise agreement. Although the grammatical reading of subs (3) presents 
difficulties, the Explanatory Memorandum to the relevant Bill makes the meaning 
clear:

Where such a term requires or allows [the Commission] to deal with a dispute, 
it can exercise all of its powers under Subdivision B of Division 3 of Part 5-1 
(see subclause 595(4)), unless those powers are limited by the term (subclause 
739(3)).

That is to say, if the term places limits on the powers that may be exercised by the 
Commission in settling disputes, the Commission must remain within those limits.

30. Critical to the significance of subs (3) and (4) of s 739 is the circumstance that, 
under the FW Act, the Commission has no general power of arbitration. By s 595(1), 
the Commission may deal with a dispute only if it is expressly authorised to do so 
under or in accordance with another provision of the FW Act. Then s 595(2) does 
provide such an express authorisation in relation to disputes, but arbitration is 
excluded. To put the matter completely beyond doubt, s 595(3) provides that the 
Commission may deal with a dispute by arbitration only if it is expressly authorised to 
do so under or in accordance with another provision of the FW Act.

31. Section 739(4) is such a provision. But it is limited in two ways. First, the parties 
must, by the relevant term in the agreement, have agreed that the Commission may 
arbitrate. And secondly, by subs (5), in the arbitration the Commission must not make 
a decision that is inconsistent with the FW Act or a fair work instrument that applies to 
the parties.








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32. In the light of this understanding of the relevant provisions of the FW Act in the 
context of the history of broadly corresponding provisions since 1992, does the 
introduction of s 739(5) into the analysis warrant the conclusion that the Full Court in 
ALS58 was plainly wrong in its characterisation of the Commission’s relevant role as 
that of private arbitration?

33. We would hold not. Section 739(5) does not alter the character of the arbitration 
which the Commission undertakes under an enterprise agreement in the terms of the 
Agreement. It merely places a limit on the range of arbitrated (but not conciliated, it 
may be noted) outcomes available to the Commission in those cases in which the 
parties have agreed that the Commission may arbitrate (using, in this respect, the same 
formula as appears as subs (4) of s 740, on any view a private arbitration provision). In 
our view, the more likely explanation of the absence of any reference to s 739(5) in the 
reasoning of the Full Court in ALS is that their Honours considered it to make no more 
than an inconsequential contribution to the disposition of the issue on which they 
ruled. With respect, we would agree with that assessment of the situation.

34. There may be a question as to how a party to an arbitrated outcome in a dispute-
setting process of the kind contemplated in s 739 of the FW Act might go about 
alleging that the Commission had overstepped the limitations for which subs (5) 
provides. In the present case, the applicant does allege that the Full Bench decision 
was inconsistent with a fair work instrument, namely, the Agreement. But the 
inconsistency is said to reside wholly in the circumstance that the decision was wrong; 
that is to say, the Full Bench reached the wrong conclusion on the very matter which 
was given to it for arbitration. Whatever else s 739(5) means, it does not, in our view, 
produce an outcome of the kind sought by the applicant. Otherwise, we had the benefit 
of no more than the most tangential of references to the matter in the submissions 
made in the present case.”59

[48] In relation to the matter of determination of the meaning of the disputed aspects of the 
Agreement it is noted that such task requires construction of the words of the instrument. In 
relation to that task, the Full Bench laid out in AMIEU v Golden Cockerel Pty Ltd60 (Golden 
Cockerel) the principles for interpretation of an enterprise agreement. In that matter, and after 
an extensive analysis of the subject, the Full Bench summarised the principles to be applied in 
the following way;

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act61 does not apply to the construction of an enterprise agreement 
made under the Act.

2. In construing an enterprise agreement it is first necessary to determine 
whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in 
determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding 
circumstances will not be admitted to contradict the plain language of the 
agreement.








[2016] FWC 5028

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5. If the language of the agreement is ambiguous or susceptible to more than 
one meaning then evidence of the surrounding circumstance will be admissible 
to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the 
objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend 
to establish objective background facts known to all parties and the 
subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a 
common assumption.

7. The resolution of a disputed construction of an agreement will turn on the 
language of the Agreement understood having regard to its context and 
purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in 
which it operates.

9. Where the common intention of the parties is sought to be identified, regard 
is not to be had to the subjective intentions or expectations of the parties. A 
common intention is identified objectively, that is by reference to that which a 
reasonable person would understand by the language the parties have used to 
express their agreement.

10. The task of interpreting an agreement does not involve rewriting the 
agreement to achieve what might be regarded as a fair or just outcome. The 
task is always one of interpreting the agreement produced by parties.”62

Has the MFB followed the processes mandated by the Agreement?

[49] In accordance with the characterisation of the dispute set out earlier in this decision, it 
is first necessary to consider whether the MFB has followed the processes mandated by the 
Agreement in relation to its intention to dismiss Mr Duggan.

[50] The nature of the evidence requires consideration of whether the MFB has complied 
with the mandated processes in respect of a desired change to the Police Check Policy and 
whether it has followed its obligations in relation to Mr Duggan, being on “probation” and a 
“probationary employee”.








[2016] FWC 5028

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The MFB’s application of its Police Check Policy

[51] The argument is made by the MFB that its decision to dismiss Mr Duggan is 
consistent with the Agreement and, moreover, it maintains that the reasons for doing so within 
his period of probation are those set out in its “Termination of employment” letter to him 
dated 24 May 2016, referred to above. That letter includes the views that his role as a 
firefighter meant that he “would be in a position of power over vulnerable members of the 
public”, that NCAT had found Mr Duggan “guilty” of professional misconduct with a 
consequential prohibition from being registered as an osteopath for 6 years and had 
“expressed concern about any one-on-one assessment or treatment undertaken by you ‘in any 
health field requiring a consent process’. (Health Care Complaints Commission v Duggan 
(No.2) paragraph 113).” The correspondence concluded;

“In light of NCAT's findings, the MFB does not consider that you are a person in which 
it can have the level of trust and confidence that is required of a firefighter, including 
in relation to the Emergency Medical Response component of the role, or that you 
meet the standard of personal integrity that is an inherent requirement of an MFB 
firefighter.”63

[52] The MFB submits that it has made no change to the Policy and nor has there been any 
breach. Further, because there was no change to the Policy there was no need to consult with 
the UFU under the Agreement with respect to any change to the Policy.64 The MFB also 
submits that since there is no process mandated under the Agreement that has not been 
complied with, the dispute must come to an end and be resolved by such a finding leaving it 
free to implement its decision to terminate Mr Duggan’s employment.65

[53] Counter to these arguments, the Respondents submit that the MFB was not entitled to 
terminate for its articulated reasons because to do so is contrary to the Police Check Policy.66

[54] The Respondents also contend the MFB has unilaterally amended its Police Check 
Policy by introducing a new and additional criterion that adverse findings by an occupational 
tribunal can render a person unsuitable for employment as a firefighter. The MFB contends 
that such is not the case and that there has been no such amendment to its policy. 

[55] The Policy, set out in the attachment to this Decision, requires an employment 
applicant to provide a National Police Certificate, which is used to assess compliance with the 
MFB’s Prior Offences criteria. Candidates are informed through the Policy that “where the 
National Police Certificate shows a record of found guilty/charge/s proven this may be 
deemed to be a noncompliance with MFB's Prior Offences criteria. This is irrespective of 
whether or not a conviction has been recorded”. The criteria themselves are set out in the 
Policy in the following manner;

“Permanent disqualification

The following matters will be considered grounds for permanent disqualification from 
consideration as a potential employee. An offence history for the following categories:








[2016] FWC 5028

19

 Found guilty, charge proven on offences including but not limited to murder, 
armed robbery, sexual assault, arson, drug trafficking, break and enter, theft of 
motor vehicle, theft, malicious wounding.

Interim or temporary disqualification

Serious offences within the past 10 years will be considered grounds for a 10 year 
disqualification, from consideration as a potential employee from date of offence.

Matters considered as a serious offence include but are not limited to:

 Found guilty, charge proven on offences such as minor property damage, minor 
assault and inappropriate behaviour in a public place in the preceding 10 years

 Current Intervention Order(s)- A person who is subject to a current intervention 
order under S.4 of the Crimes (Family Violence) Act 1987 or an order of a 
corresponding nature made in another state or territory, notwithstanding they have 
been granted an exemption from them being a prohibited person under the Firearms 
Act 1996.

 Other matters that may disqualify an applicant: outstanding warrants or court 
orders at the time of commencement as an MFB recruit; currently under 
investigation, charged or awaiting criminal proceedings.

The Director, Human Resources has a discretionary power to consider applicants with 
all other offence histories.”67

[56] Mr Duggan’s history does not fit the “permanent disqualification” criteria; he has not 
been found guilty or had a charge proven on any of the listed matters. His conduct also does 
not fit any of the “interim or temporary disqualification” criteria; again not having been found 
guilty or had a charge proven on any of the listed matters, and there is no evidence before me 
of a current intervention order of the listed type, and there is no evidence of an outstanding 
warrant, or that he is currently under investigation or has been charged and awaiting trial on 
any criminal proceedings. While the “other matters” sub-criterion refers to a person subject to 
“court orders” being someone who may be subject to an interim or temporary disqualification, 
the MFB did not argue that the NCAT orders are of that type.

[57] The Police Check Policy records the MFB retains “a discretionary power to consider 
applicants with all other offence histories”. In context, that discretion is a power for the MFB 
to say that even though a candidate’s history as supplied in accordance with the Policy does 
not strictly lead to permanent, interim or temporary disqualification, there may be some other 
factor within the information disclosed that causes the MFB not to offer employment. Within 
the context of the MFB’s status as a public authority, and the work of firefighters entering 
homes and businesses to fight fires, and to render emergency medical assistance to members 
of the community, such is entirely proper and logical. The Police Check Policy fully allows a 
discretion to be exercised as it stands, and no criticism of the type advanced by the 
Respondents could attach to such an exercise. To put it another way, a decision not to employ 
a person because of their personal conduct years ago, or because of their professional 
misconduct in an earlier career, would likely be consistent with the Policy. There would be no 
need to consult over a change to the Policy in such a case, because there would not have been 
any change, intended or actual, to the Policy.








[2016] FWC 5028

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[58] Practically speaking, exercise of this discretion would most likely be on the basis of 
information obtained through the MFB’s pre-employment inquiry processes. Normally one 
would expect those processes to comprise interviews, reference checking, and follow-up 
questions to any documents received, including an application form enquiring about arrest and 
charge history, or a National Police Certificate.

[59] Plainly though in Mr Duggan’s case, insufficient pre-employment inquiry was 
undertaken, even though it probably should have been because he disclosed that he had, since 
turning 18 years of age, been arrested and charged with committing a crime. When the 
National Police Certificate returned with the report of “no disclosable court outcomes 
recorded”, the inconsistency with his other answers should have been noticed, and the 
questions “why?” and “what does this mean?” or “what were you arrested or charged over?” 
should have been asked. That they were not asked can only be regarded as a significant and 
remarkable failure within the MFB’s human resource management systems.

[60] These questions, and a decision to exclude Mr Duggan from further consideration for
employment, were entirely open to the MFB under the Agreement, and inquiries to elicit 
further information or the making of a decision to preclude him from employment would have 
been entirely consistent with the Agreement and the Police Check Policy. No criticism under 
the Agreement could attach to the MFB for seeking information of this type, or a 
consequential decision not to employ him. By undertaking insufficient enquiries into Mr 
Duggan’s suitability as a firefighter, the MFB offered him employment, but essentially now 
wants to find a way to end the contract into which it has entered.

[61] The evidence does not lead to a finding that the MFB sought to unilaterally amend its 
Police Check Policy by introducing a new and additional criterion that adverse findings by an 
occupational tribunal can render a person unsuitable for employment as a firefighter. Instead, 
the evidence leads to findings that Mr Duggan was asked to supply information consistent 
with the Policy, which he did; that the MFB considered the information he provided and, 
notwithstanding what it received, made no election to exercise its discretion not to employ Mr 
Duggan.

[62] Instead, the evidence leads to a finding that, when the MFB characterises Mr Duggan 
as not being “a person in which it can have the level of trust and confidence that is required of 
a firefighter” and that he should thereby be dismissed,68 it seeks to dismiss him because 
information it only learned of after he commenced employment calls into question his 
ongoing employment beyond the probation period.

The MFB’s obligations in relation to “probation” and “probationary employee”

[63] While the MFB does not say to Mr Duggan in its “Termination of employment” letter 
that he has been terminated within his probationary period or that its termination of his 
employment is for reason of a failure to pass his probation, it refers to the expiry of his 
probationary period with the MFB as being part of its consideration in its preliminary views 
communicated to him by letter dated 5 May 2016. That letter, entitled “Expiry of your 
probation period with the MFB” confirmed that “the MFB had formed the preliminary view 
that it is not appropriate for it to continue your employment beyond the expiry of your 
probationary period on Monday 9 May 2016”.69








[2016] FWC 5028

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[64] The evidence leaves little doubt that the MFB proposes Mr Duggan be dismissed as a 
probationary employee because the MFB believes it is entitled to do so. There is also little 
doubt that, despite the MFB’s hesitation on the matter, that it wishes to do so because it 
considers Mr Duggan’s professional misconduct as an osteopath to be an unacceptable 
background for a firefighter.

[65] Counsel for the MFB avoided characterising Mr Duggan’s failings that will lead to his 
dismissal as being conduct that arose after he was employed, with this exchange with Counsel 
for the MFB in the course of the hearing;

“THE COMMISSIONER: Are you saying that there was no failing on the part of Mr 
Duggan until 17 of March when that decision was handed down by NCAT and then 
the failing of him was that he failed to bring that to the attention of the MFB and that it 
came to their attention through other sources?

MR WHEELAHAN: What I am saying is the reason for the termination, the decision 
to terminate Mr Duggan's employment, is set out in that letter of 224 [sic 24] May of 
this year, which is Annexure 4.

THE COMMISSIONER: All right.”70

[66] In the absence of an affirmative response by Counsel to the question posed by me 
about Mr Duggan’s conduct after he was employed, the Commission could be expected to 
form the view that the MFB is not critical of him for his failure to bring the NCAT findings to 
their attention once they became known to him. However, after viewing the evidence in 
totality, and especially that of Mr Leach, the conclusion that such criticism was present is 
unavoidable.

[67] On the one hand, Mr Duggan disclosed prior to being offered employment that he had 
both been arrested and charged for criminal offences since turning 18 years of age and, in 
response to the MFB’s Police Check Policy, provided a National Police Certificate in standard 
form and over which there is no dispute that it is other than factually correct. On the other 
hand, Mr Leach told Mr Duggan at the time that he informed him he was to be dismissed that 
continued employment of someone such as him would not be a “good look”, with this 
response in the course of the Applicant’s examination-in-chief;

“All right. So you said that, and then saying that did you talk about – or say anything 
about what might be on the front page of the Herald-Sun?---I did. I did use that 
example. I said the other element to it is that MFB is going down the path of a 
diversity strategy at the moment and we're trying to introduce a more diverse 
workforce, particularly women into the workforce. We have a women in action 
strategy that we're trying to implement and if you applied the Herald-Sun test to this 
matter, it's not a good look if we're employing people that have been the subject of 
proceedings around sexual assault when we're trying to attract more women into the 
workforce. I think that was the context of the conversation.

Did you say to him, he fails the public interest perception test?---I don't recall saying 
that, no.”71








[2016] FWC 5028

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[68] As developed by the MFB through the mechanism of Mr Leach’s evidence, the 
ultimate question for consideration in this dispute is not whether the MFB complied with the 
Agreement by complying with the Police Check Policy, but whether the MFB has good 
reason to dismiss Mr Duggan because of things it learned about him after he was employed, 
or because of his conduct after he was employed. The dispute as it has evolved before the 
Commission therefore involves a consideration of whether dismissal for either reason is 
permissible because of what the Agreement has to say on the subject of “probation” or 
“probationary employee” or because of the ordinary and grammatical meaning of the terms.

[69] While it could be argued that the NCAT decision has no adverse impact on Mr 
Duggan’s employment relationship with the MFB, I consider it does for reasons articulated 
below, including as to whether he can perform the EMR function while employed by the 
MFB. However, while that consideration may be open to debate, Mr Duggan is not able to 
avoid criticism of his conduct after being employed because he did not inform the MFB of the 
NCAT decision and waited for the MFB to raise it with him. Failing to inform the MFB 
deprived it of the opportunity to consider and discuss the matter before it became widely 
known; to put in place procedures to deal with the concerns of other recruits; and to carefully 
consider whether the orders may impact on the MFB’s EMR work and what alternatives may 
exist, if it did impact.

[70] Jurisdiction for the Commission to deal with a dispute about a change in the MFB’s 
approach to the terms “probation” or “probationary employee” is given by clause 19.1.2 for 
reason that both the terms and any change to how they are implemented are matters pertaining 
to the employment relationship.

[71] The dispute as it has evolved before me relates to whether or not Mr Duggan may be 
dismissed, as a probationary employee, for reason that the question of his dismissal is a matter 
pertaining to the employment relationship. This conclusion is drawn irrespective of the 
meaning of the terms within the Agreement of “probation” or “probationary employee”. 
Arguably, the dispute extends not just to the first and most obvious question of whether he 
may be dismissed, since that is itself a dispute about “matters pertaining to the employment 
relationship” (cl. 19.1.2), but also to the question of whether those reasons themselves amount 
to a “change in matters pertaining to employment relationship” (cl. 15). In relation to 
consultation over proposed changes to the employment relationship, the Full Bench has held 
that it is not the changes themselves which must pertain the employment relationship, but the 
matters the subject of the change.72

[72] The term “probation” or “probationary” is used in only one place in the Agreement 
and that is in clause 69.1.1 which sets out the classifications of the employees working under 
the Agreement. In the definition part of the clause, the term “recruit firefighter” is given this 
meaning;

“Recruit Firefighter means a probationary employee, who is undertaking the recruit 
training course.”

[73] Consistent with the Commission’s authorities in respect of the construction of 
enterprise agreements,73 I consider that the term “probationary employee” as it is used within 
the Agreement is not one that contains an ambiguity. The Agreement intends for the term to 
have its ordinary and grammatical meaning. In forming that view I have not had regard to the 
provisions of the Acts Interpretation Act 1901 (Cth). While I have had regard to whether there 








[2016] FWC 5028

23

is any evidence of surrounding circumstances to assist in the formation of that view, I find 
that there is not. There is no admissible evidence before the Commission regarding how the 
term is to be construed.

[74] The context within which the Agreement was formed includes the provision of the 
MFB Act, which does not assist the task of construction for the reason it also does not define 
the term “probation”. The MFB have confirmed in supplementary submissions to the 
Commission, following a question put by me, that the relevant explanatory memorandum 
sheds no light on the Parliament’s intention when the reference to probation in s.25B was 
introduced. That section provides that “[e]very appointment or promotion of a member of the 
operational staff is to be on 3 months' probation”.

[75] The terms “probation” or “probationary employee” are, of course, commonly used 
terms in relation to employment, which have been the subject of consideration for their 
ordinary and grammatical meaning. There is nothing before me that would suggest that the 
parties, when framing the Agreement, intended for the terms “probation” or “probationary 
employee” to have anything other than their ordinary and grammatical meanings.

[76] Those meanings, invariably, are to do with an initial and limited-term assessment of an 
individual’s suitability for ongoing employment carried out at the start of employment;

 In a matter concerning whether a dismissed employee was eligible to make an 
application for unfair dismissal under the then applicable legislation because of the 
existence of a probation period, the Full Bench of the Australian Industrial Relations 
Commission considered the meaning of the terms;

“We also note the word “probation” and the term “probationary period” when 
used in an employment context has a well accepted meaning. In The CCH 
Macquarie Dictionary of Employment and Industrial Relations, the term 
“probationary period” is defined as:

[T]he initial period of a person’s employment during which his/her 
suitability and performance are assessed. If the person has not been 
satisfactory in the position, the employment relationship can be easily 
terminated or the probationary period can be extended.”74

 Within the context of a matter involving the termination of a Victorian probationary 
constable in accordance with a statutory two year probation period, the High Court 
held that “probation is a time of testing or trial and a probationer whose conduct, 
character or qualifications fail to meet the test need not be confirmed in the office to 
which he was provisionally appointed”; per Gibbs CJ and that “the word "probation" 
has the effect of suspending the final appointment until the appointee "has by his 
conduct proved himself to be fit to fill it"”; per Wilson J.75

 In a later matter involving a NSW probationary constable who claimed a right to 
unfair dismissal under the Industrial Relations Act 1996 (NSW) (the IR Act), the 
High Court reinforced the post-employment testing nature of probationary status;

“16. There are many occupations which attract the interest of young people 
but for which some young people turn out to be unsuitable because of some 








[2016] FWC 5028

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factor not readily identifiable in advance. One of those occupations is the 
occupation of police officer. Police officers have heavy responsibilities. They 
sometimes work under grave pressures. How satisfactorily particular 
individuals bear those responsibilities and stand up to those pressures can only 
be learned by experience. Hence most New South Wales police officers 
commence their careers by being probationary constables. Probation involves a 
process of putting to proof. It is a process of investigation and examination. A 
probationary period is a "period of testing or trial for the purpose of 
ascertaining whether [a person] has the necessary qualifications for a 
permanent appointment, and the word 'probation' itself involves the idea of 
something in the nature of trial and experiment with a view to determining 
whether an applicant is to be appointed." A probationary constable is one 
whose qualifications for non-probationary status are put to proof, investigated, 
examined, tested or tried. Those qualifications include aptitude, competence, 
integrity, performance and conduct. The probationary status of probationary 
constables is another factor pointing to the conclusion that s 84(1) of the IR Act 
does not extend to conferring on probationary constables a right to claim that a 
dismissal is harsh, unreasonable or unjust.”76 (References omitted)

 In a Federal Court matter requiring consideration of whether a probation period was 
reasonable for the purposes of eligibility to make an unfair dismissal application, the 
Court held;

“The purpose of probationary employment is to provide for a period in which an 
employee can be trained to do the work and in which an assessment can be 
made of his or her aptitude and capacity to do the work once the employee has 
been trained or partly trained: see Ryan v Furneys Stockfeeds Ltd (1996) 66 IR 
298. That assessment is to be made before the employment becomes more 
permanent and, for present purposes, subject to the constraints on termination 
imposed [by legislation]”77

 In a consideration of the definition and nature of probationary period in the 
application of former legislation which relied upon the term to distinguish eligibility 
to make an unfair dismissal application, Donaghey78 notes Industrial Relations Court 
authority for the ordinary meaning of “probation” drawn from the Macquarie 
Concise Dictionary to include a period of testing or trial of a person’s conduct, 
character, qualifications or the like; as well as Australian Industrial Relations 
Commission authority both that a probationary period is not equivalent to a training 
period, as well as its purpose being “to gauge, from the perspective of both the 
employee and employer, the viability of continuing the employment relationship”.79

Irving80 notes that “probation periods are a common form of notice provision” 
making reference to authorities which identify, within the context of particular 
employment relationships, rights to employees to have their performance objectively 
assessed; to remain in employment until the end of their probationary period; and to 
procedural fairness at the end of a fixed period of probation.

[77] It is apparent from this analysis that “probation” or engagement as a “probationary 
employee” is an examination of how the employee presents themselves once employment has 
commenced, being “a time of testing or trial”, “a process of putting to proof ...investigation 
and examination”. After training an assessment can be made of aptitude or capacity. If a 








[2016] FWC 5028

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person has not been satisfactory in their position, “the employment relationship can be easily 
terminated or the probationary period can be extended”. Nowhere, does it seem, do the well 
accepted meanings turn to the consequences of uncovering after employment some fact from 
things prior to the commencement of employment. Instead, those matters are likely to be 
protected through the ability to dismiss for serious misconduct.

[78] In Mr Duggan’s case, the matters which are the subject of HCCC complaints to the 
NCAT occurred before he was offered employment and were the subject of tribunal sanction 
in March 2016, after employment had commenced with the MFB. He evidently truthfully 
answered the questions that were put to him in the recruitment process and complied with the 
Police Check Policy. However, Mr Duggan did not let the MFB know about the NCAT 
decision. His evidence on the subject was brief; merely that “I wasn't aware that there was any 
requirement for that”.81 Mr Duggan was not entirely candid with the MFB and cannot avoid 
criticism for his actions because he did not come forward to the MFB about the NCAT 
decision once he learned of it. That fact diminishes Mr Duggan’s ability to make a claim of 
exemplary conduct after being employed.

[79] After he was sent the MFB’s 5 May 2016 correspondence, “Expiry of your probation 
period with the MFB”, Mr Duggan responded in writing to the invitation to address the issues 
set out within the correspondence. The response included noting the misconduct pertained to 
the period November 2009 to February 2010; that the trial in the District Court was in 
September 2012, with Mr Duggan being subjected to cross-examination and that “[s]ome of 
the charges were withdrawn and Mr Duggan was acquitted on all remaining charges”. His 
response also made these submissions;

“10. In 2013 Mr Duggan and his wife moved to Victoria in 2013 He worked in the 
sustainability industry for a firm which engaged in activities such as doubleglazing, 
insulation and sealing of homes to prevent heat/cold transfers. He informed his 
employers of his court case at the initial interview and became a manager at the 
company over the course of two years.

11. In 2013 he began his application to the MFB.

12. One of the forms he was required to complete asked questions to the effect of had 
he been in trouble with the police and had he been charged or arrested with a criminal 
offence to both of which he stated “yes”. The form did not ask for details.

13. Mr Duggan expected that he would be asked about is responses in interviews, and 
intended to refer to the criminal trial himself as an example of how he was able to deal 
with adversity. However he was not asked, and an opportunity to raise it did not 
occur.”82

[80] After being informed in 2015 that the NSW Health Care Complaints Commission was 
to bring proceedings in NCAT; 

“15. Mr Duggan informed the HCCC that he requested that his name be removed from 
the register of osteopaths, that he undertook not to seek registration, and that he had no 
intention to work as an osteopath or in any other health care profession.








[2016] FWC 5028

26

16. He also advised that he did not have the financial resources to contest any 
proceedings brought by the HCCC.”83

[81] Mr Duggan’s explanation for not participating in the NCAT proceedings in February 
2016 is that the hearing was during his recruit training and he had received legal advice that it 
would have no impact on his position as a firefighter.84 He also lacked the financial means to 
contest the complaints.85

[82] By seeking to terminate Mr Duggan’s employment within his probationary period of 
employment for events that occurred prior to employment, and which came to its notice after 
employment had commenced, and which were not reported by Victoria Police in the National 
Police Certificate it issued, the MFB seeks to depart from the well accepted meanings of 
“probation” and “probationary employee”. Further, by making no substantial complaint of 
misconduct on Mr Duggan’s part about not informing them of the NCAT findings, the MFB 
makes no effort to connect that conduct with his suitability as an ongoing employee.

[83] A desire on the part of the MFB to depart from the accepted meaning of probation is a 
matter pertaining to the employment relationship. A matter will pertain to the relationship of 
employers and employees if it directly affects the conditions of employees,86 and, in relation 
to whether consultation is required, it is not the changes themselves which must pertain, but 
the matters the subject of the change.87 In this case, a desire to dismiss an employee during 
probation for conduct prior to employment and discovered after employment commenced is a 
matter over which clauses 15 and 13 of the Agreement will require consultation to be 
undertaken prior to any decision.

[84] On the basis of the foregoing analysis, I would answer the first element of the dispute 
as characterised by me in the following way;

Q1: Whether or not there was a failure by the MFB to follow any process mandated 
by the Agreement with respect to the termination of Mr Duggan’s employment;

A: Yes; in respect of changes to the MFB’s application of policies in relation to 
“probation” and “probationary employee”.

No; in respect of a change to the Police Check Policy.

Whether the dispute is resolved; Whether Mr Duggan’s employment may be terminated

[85] The second and third elements of the dispute as characterised by me are;

2. Whether the dispute the subject of this proceeding is resolved; and

3. Whether the decision to terminate the employee’s employment can therefore 
now be implemented by the MFB.

[86] I consider that the dispute is not resolved, with there being a need either for 
consultation over changes to the MFB’s use of “probation” and “probationary employee” or, 
if that is considered not appropriate, for appropriate action to deal with Mr Duggan’s conduct 
after employment commenced.








[2016] FWC 5028

27

[87] A threshold issue is whether Mr Duggan’s conduct, at any stage, warrants dismissal. I 
consider not. Dismissal at this time, for reason of him being under “probation” or a 
“probationary employee”, would not be consistent with the well accepted meanings of the 
terms. While perhaps he should not have been employed in the first place, no warrant exists 
from his pre-employment conduct to now dismiss him. Mr Duggan’s conduct after 
employment commenced, while not to be condoned, is not sufficient to dismiss him, for the 
reason it does not undermine his suitability for ongoing employment or the viability of 
continuing the employment relationship.

[88] In some circumstances, such as where conduct prior to employment was hidden or lied 
about and thereby amounted to serious misconduct, the MFB would be justified in summarily 
dismissing an employee, relying on the provisions of the Agreement’s clause 27.2.5, which 
enables the MFB to dismiss “for conduct that justifies instant dismissal, including 
inefficiency, neglect of duty or misconduct”.

[89] The MFB has not argued to the Commission that Mr Duggan’s conduct after being 
employed justifies termination of his probationary employment, although it does say that it “is 
concerned with its right to determine that an employee is not suitable to continue in his 
employment beyond his 3 month probationary period.”88 This situation avoids making 
criticism of the failure of Mr Duggan to bring to the MFB’s attention the NCAT findings and 
Order. 

[90] Objectively considered, Mr Duggan’s conduct since being employed by the MFB is 
not such that it would cause him to fail the well accepted view of probationary employment, 
being a “period of testing or trial for the purpose of ascertaining whether [a person] has the 
necessary qualifications for a permanent appointment”, and the MFB has not argued that his
post-employment conduct is of that nature. In addition, while Mr Duggan’s failure to notify 
the MFB of the NCAT decision is to be deprecated, and is not fully answered by his candour 
after being approached on the subject by the MFB, his failure is unlikely to be either “wilful 
or deliberate behaviour by an employee that is inconsistent with the continuation of the 
contract of employment” or “conduct that causes serious and imminent risk to … the 
reputation, viability or profitability of the employer’s business”89, and the MFB does not 
argue that it is. While Mr Duggan’s conduct in not advising the MFB of the NCAT decision 
and Orders was not serious misconduct, it was, however, likely misconduct.

[91] It is no answer to those failings for the Respondents to point to the fact that Mr 
Duggan took no part in the original NCAT proceedings, or that he has now commenced 
proceedings to overturn the original findings and Order or to point to the contention that the 
Tribunal was in demonstrable error when it made the findings it did. Until overturned, the 
decision, its findings and Order are binding on all concerned, and especially Mr Duggan.

[92] All parties are plainly in a difficult position.

[93] The MFB failed to ask pertinent questions of an applicant about matters disclosed to it 
prior to employment. Those questions, had they been asked, would probably have elicited 
relevant information. There is hardly a lot of point to asking an applicant for public sector 
employment whether they have been arrested since turning 18 years of age or charged by the 
police with committing a crime and then failing to follow-up with the most basic and obvious 
further question before employment is offered – what were those arrests and charges? Had it 
asked that question, and the evidence is that the MFB did not, it may well never have 








[2016] FWC 5028

28

employed Mr Duggan. Instead, it appears to have simply accepted the statement of “no 
disclosable court outcomes recorded” on his National Police Certificate to be the end of the 
matter. Perhaps that would be so in the majority of cases. However, it now apprehends, no 
doubt fairly so, that it may not pass the test of public perception about its decision to employ 
Mr Duggan.90

[94] Mr Duggan’s work as an osteopath was demonstrably professionally unsound. He was 
charged with criminal offences in relation to his professional conduct. Some of those charges 
were dropped in the course of the trial and he was acquitted on others. He was not found 
guilty of any charge. Even so, the relevant professional licencing tribunal found certain 
particularised complaints were proven in accordance with the civil standard of proof. Those 
complaints were laid some years after the original criminal charges but arose from the same 
events. The consequence of the professional licensing proceedings is that Mr Duggan may not 
work as an osteopath and may not make application to do so for 6 years. It is not relevant that 
he contests the NCAT findings and is in the process of appealing them. The findings have 
been made, and are binding until reversed.  

[95] Significantly, Mr Duggan may also not provide any “health service” until such time as 
a reinstatement order is made by NCAT. The MFB contends that the nature of these sanctions 
is that Mr Duggan is prevented from providing health services in Victoria.91 In short, the 
MFB’s submission is that NCAT orders have effect in Victoria because of Victoria’s 
participation in a national registration scheme for health practitioners and that, because the 
MFB’s EMR function is a “health service” for the purposes of relevant Victorian legislation, 
he may not undertake those duties while employed by the MFB until such time as a 
reinstatement order is made. The Respondents take a different view, submitting that the order 
“prevents Mr Duggan from practising as an osteopath in Victoria but does not generally 
prevent him from providing other “health services” within Victoria”, and that the MFB is 
neither a “health service” nor an “ambulance service”.92

[96] The Agreement provides for Emergency Medical Response work in detailed 
provisions within clause 87, which relevantly provides;

“87. EMERGENCY MEDICAL RESPONSE (EMR)

87.1. The parties recognise that Emergency Medical Response (EMR) is a core 
function of the Metropolitan Fire and Emergency Services Board and is limited to 
Priority O cases as defined in sub clause 87.4 and to a maximum of 6000 calls 
annually.

87.2. The parties recognise that in accordance with the MFESB's duty of care, from 
time to time firefighters may need additional assistance to cope with this demanding 
role. Such support and assistance shall be provided by the MFESB for firefighters, 
upon request in order to avoid any potential OH & S issues arising. In the context of 
firefighters duty of care, firefighters may exercise a choice not to pursue this role.

87.3. Every employee covered by this agreement will be paid an amount of $1.93 per 
hour worked when available to be rostered for EMR duties. At an employee’s election, 
this allowance shall be reduced to 80 cents per hour and will become an all-purpose 
allowance and will form part of the employee’s base wages/salary for the purpose of 








[2016] FWC 5028

29

calculating superannuation contributions. The amount shall be incorporated in the 
amounts set out at clause 96.”

87.4 – definition of Priority “O” cases – not reproduced

“87.5. The provisions of this clause define the circumstances in which Firefighters can 
be directed to perform EMR. Employees covered by this agreement cannot be directed 
to perform EMR in any situation other than in response to a defined type of priority O 
case.”

87.6 – 87.8 – not reproduced

[97] While clause 87.4, which defines Priority “O” cases, is not reproduced in this decision, 
it is noted that the clause provides that “Priority O cases are those event types, which 
constitute the highest probability of cardiopulmonary arrest. Only a limited subset of Priority 
“O” calls will be responded to as part of EMR”. The definitions within the clause deal with 
life-threatening matters such as “Breathing problems, not alert”, various categorisations of 
“Cardiac or respiratory arrest/death”, convulsions, drowning and electrocution. Plainly the 
definitions relate to very serious medical emergencies.

[98] The MFB’s submissions on the subject of the effect of the NCAT Orders in Victoria, 
which is developed through an analysis of applicable legislation as part of a “national 
scheme”,  may be summarised with the following extract;

“The effect of the national scheme is that it addresses the situation that previously could 
occur where someone is found to have engaged in professional misconduct and is 
struck off the register in that State "A" for that profession and/or is subject to 
prohibition order, could potentially move interstate to State "B" and attempt to 
recommence providing health services there despite being the subject of restrictions in 
State "A". The national scheme addresses that anomaly and consequently, where a 
health practitioner is struck off the National register and/or prohibited from providing 
health services in one State, they are struck off and prohibited from providing health 
services in every State that has adopted legislation giving effect to the national scheme.

Accordingly, Mr Duggan is prevented from providing "health services" in Victoria 
because of the NCAT Order.”93

[99] I accept that submission. The NCAT Orders have application to Mr Duggan in 
Victoria.

[100] The MFB submits about its EMR work;

“The definitions of "health service" in the National Law and the Victorian Act are 
identical. It includes "ambulance services". The definition is nonexhaustive in the 
sense that it states that health service includes a broad range of services. The kinds of 
services encapsulated by the list in the definition are extensive, indicating an intention 
of the part of parliament to adopt an expansive approach to what is a "health service"
for the purpose of the national scheme.








[2016] FWC 5028

30

The EMR function is a core function of the MFB. See attached MOU, and the 
Operational Staff Agreement at clause 87. As set out above, the EMR (Emergency 
Medical Response) activity undertaken by the MFB (in collaboration with the 
Ambulance Victoria) is on any view an activity that properly falls within the meaning 
of "ambulance services". If that is not accepted, then it certainly falls within the 
broader definition of "health service".”94

[101] While the foregoing passage refers to an “attached MOU”, being a 2005 Memorandum 
of Understanding between the MFB and Ambulance Victoria, that document is not 
reproduced in this decision.

[102] I also accept the MFB’s submission that it provides a health service in Victoria. 
Because of the NCAT prohibition on him from providing any “health service”, Mr Duggan 
may not perform EMR work for the MFB either now or in the future, unless and until the 
NCAT order is amended or revoked.

[103] In its 5 May 2016 letter to Mr Duggan, “Expiry of your probation period with the 
MFB”, it said to him that he does “not meet the standard of personal integrity that is an 
inherent requirement of an MFB firefighter” and that he is not “able to safely perform the 
inherent requirement of providing emergency medical assistance to members of the public”.95

It also characterised EMR as a core function, pointing to the use of that term in Clause 87.1.

[104] The MFB drew oral evidence in these proceedings from Mr Leach about EMR being a 
core function of firefighters. The MFB’s contentions about EMR being a core function are 
supported by a reference within Mr Duggan’s 23 December 2015 “Letter of employment”, in 
which he was informed;

“Emergency Medical Response is a core function of the MFB and accordingly will form 
part of the Recruit Firefighter training and continuation training program.”96

[105] Notwithstanding the function being a core function, clause 87.2 allows some 
employees, perhaps many employees, to withdraw from performing the work by exercising a 
choice not to pursue the role. However, on any analysis, that choice is not open-ended, with 
the choice instead being referable to a reasonably or objectively based situation. It would not 
be consistent with the clause for a firefighter to simply say they did not want to do the work.

[106] Mr Morton’s evidence about the exercise of choice in clause 87.2 was such that to not 
pursue the EMR role was a wide discretion for any firefighter to exercise, being voluntary and 
allowing them to opt out,97 giving this explanation in examination-in-chief;

“In your experience of these matters is there any restriction imposed on the grounds for 
which a firefighter may elect out under clause 87.2?---The role to undertake EMR or 
the requirement to undertake EMR is voluntary, and as such there's no requirement to 
give a reason for opting out. It's voluntary.

In your experience when a firefighter opts out - cases that you're aware of?---Yes.

Has the firefighter given a reason?---In some cases they have.








[2016] FWC 5028

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What sort of reasons have they given?---One was that he - in his words, "I joined this 
job to be a firefighter, not a paramedic." Another one was that he felt that he didn't 
want to take ambo's jobs. Another one was that he - there was a psychological one 
where he actually said - didn't like the sight of blood. They're the different reasons.

Have you, in your experience, known of cases where firefighters have opted out and 
not given a reason?---Yes.”98

[107] In contrast, Mr Leach considered the exercise of choice to not pursue the EMR role as 
a somewhat limited one, giving this response in cross-examination;

“If Mr Duggan were to exercise his right under clause 87.2 of the enterprise agreement 
not to do EMR, that would allay all your concerns, wouldn't it, Mr Leach?---No, 
because the core role of a firefighter, if you go to clause 87.1, is that EMR is a core 
function of MFB, so our expectation would be that firefighters are trained and respond 
to EMR calls. My reading and interpretation of clause 87.2 is in the circumstances 
where a firefighter, because of psychological concerns about the amount of trauma 
they may have witnessed as a part of EMR, may elect to opt out of EMR for a period 
of time. It wouldn't be satisfactory for me to have a firefighter who couldn't perform 
the role of EMR, not when we go out and when we recruit we get, you know, 
thousands of applications to undertake the role of a firefighter. So why would we 
continue with someone who couldn't perform an EMR role when we can go out and 
recruit other people who can perform all facets of the role?”99

[108] The evidence of the witnesses of both parties on the question of the meaning of the 
exercise of choice in clause 87.2 is not admissible evidence of the surrounding 
circumstances.100 How each of the witnesses thinks the clause was intended to work amounts 
only to their subjective views about the operation of the Agreement.

[109] The phrase in question that “firefighters may exercise a choice not to pursue this role” 
is not unqualified and plainly allows a contextual exercise of choice, with the context being 
that of “firefighters duty of care”. The phrase is within the last sentence of a three sentence 
clause, with the first sentence making reference to the “the MFESB's duty of care”. Neither of 
those specific terms, or the more generic “duty of care”, is defined elsewhere within the 
Agreement. However, when the term “duty of care” is used in other clauses it is with 
reference to the safety of firefighters (for example, see clauses 34.3, 36.7, 92.10).

[110] Outside of this Agreement, duty of care can have a broader meaning, being an 
obligation imposed on a person to take reasonable care to ensure that they do not cause 
another to suffer harm.101 While that is so, the use of the term throughout the Agreement 
points to it meaning an obligation on the MFB to take reasonable care to ensure harm is not 
caused to a firefighter. Support for that proposition is given by the first sentence of the clause, 
being one of the other places in the Agreement in which the phrase “duty of care” is used, 
with the recognition being given by the parties to the Agreement that additional assistance 
may need to be given to firefighters to cope with the demanding role of EMR.

[111] That being so, when it comes to the exercise of a choice not to pursue the EMR role, 
the Agreement does not set out a process for doing so. It can, however, be expected that any 
such request or notification by an individual firefighter is through the prism of their exercise 
of choice for the avoidance of harm of some kind, whether to themselves, a co-worker or to a 








[2016] FWC 5028

32

member of the public. It would be unlikely that an exercise of choice was permissible if it was 
solely for the purpose of not wanting to do the work. It would unlikely be permissible for the 
exercise of choice to be indefinite – situations plainly change over time, and harm factors that 
once existed will often resolve.

[112] While Mr Leach’s evidence of the exercise of choice being a limited one is not 
admissible evidence in the interpretation of the Agreement, the sentiments he expresses are 
generally more consistent with the proper interpretation of the clause. That is, the exercise of 
choice not to pursue the EMR role is limited to a circumstance in which a firefighter 
apprehends on reasonable grounds and provides reasonable evidence of such that their pursuit 
of the role will harm either themselves or other firefighters.

[113] Mr Duggan has appealed the NCAT decision, with the hearing set down for 29 
September 2016. Senior Counsel for the Respondents submitted that “Mr Duggan is willing to 
say that at least until his NCAT application is resolved, he will exercise that choice and will 
not provide any EMR”.102 The submission says nothing about what happens after the NCAT 
application is resolved, which is likely informed by the Respondents’ view that the NCAT 
Orders have no application in Victoria, or if they do, they have no application to the MFB.

[114] In the case of Mr Duggan, being someone now prohibited from providing any health 
services, which the EMR work demonstrably is, he may not do the work and if he does so in 
breach of the NCAT Order he risks further punishment. In the circumstances, it is reasonable 
to find, by advising the MFB that he will not pursue the EMR role, with such hardly being a 
choice on his part, that Mr Duggan would be doing so to avoid harm, if only to himself. Not 
being available for EMR work would not be a ground for termination of employment during 
“probation” or as a “probationary employee”.

[115] While the MFB may not have grounds to dismiss Mr Duggan without consultation 
because of its wish to depart from the well accepted meaning of “probation” or “probationary 
employee”, that is not to say there is no sanction available to it under the Agreement.

[116] When Mr Duggan first became aware of the NCAT decision and Order he was aware 
of the MFB’s EMR role and that it was a “core function” of his new employer. Those things 
had been said to him when employment was offered in December 2015. It is unlikely he 
would not have realised that the existence of the Order might be a material consideration for 
his employer and that he should bring it to their attention.

[117] Mr Duggan learned of the NCAT decision within a week of 17 March 2016 when it 
was handed down. There is no evidence that he planned on telling the MFB about it. The 
decision only became known to them because of the curiosity of his colleagues. By the time it 
came to the MFB’s attention, more than 4 weeks had passed since the NCAT decision became 
known to Mr Duggan. His application to set aside the NCAT decision and Orders was only 
made on 6 May 2016.

[118] In his 8 May 2016 submission to the MFB, Mr Duggan put forward that he had earlier 
told HCCC that “he had no intention to work as an osteopath or in any health care 
profession”.103 Within a week of the NCAT decision, Mr Duggan knew he was excluded from 
providing any health services. If he had not connected that prohibition, operating at least in 
NSW, to any work that he may perform in Victoria, he reasonably should have. A reasonable 
Victorian would undoubtedly say that a firefighter’s emergency attendance to their family’s 








[2016] FWC 5028

33

medical emergency was the provision of a health service; and the same bystander would 
inevitably expect that they be protected from service provision in their State by a person de-
registered in another.

[119] The seriousness of the NCAT findings, the breadth of the Orders, and the fact that 
from the point at which he was offered firefighting employment he was on notice that the 
MFB’s EMR work was a core function means that Mr Duggan must reasonably be expected 
to have drawn the decision to the MFB’s attention at the earliest possible opportunity. He 
failed to do that.

[120] Publication of the decision was inevitably going to be of interest to the MFB, and it 
was. Its findings had the potential to affect how the MFB saw him, which it did. The decision 
had the potential to affect the tasks it could assign to him, which it does. Since it highlights 
deficient recruitment procedures, the decision had the potential to negatively affect the 
public's confidence in the MFB, and it may. The decision had the potential to cause the 
community to worry about the suitability of firefighters for EMR work, and it may. For the 
reason that it went to the future work that Mr Duggan could perform, it had the potential to 
impact on his working relationships with other employees of the MFB, and it obviously did.

[121] Mr Duggan’s failure to bring the decision to the MFB’s attention was likely an act to 
conceal the NCAT decision from his new employer. It is unlikely he considered it to have no 
relevance to his employer whatsoever, or that it would have no impact at all on the 
employment relationship. This was not a circumstance in which an employee left one industry 
completely behind when he pursued employment in another industry, completely unrelated to 
the first. Instead, this is a circumstance in which an employee has been prohibited by a 
tribunal from providing “any ‘health services’” and is then employed by an employer who 
makes it a condition of employment that “Emergency Medical Response is a core function”. 
The connection is both cogent and inescapable.

[122] I consider that Mr Duggan can and should be sanctioned for failing to have brought 
the decision and Orders to the MFB’s attention. The MFB has that right under the Agreement 
and the Respondents should accept that sanctions ought be applied.

[123] The Agreement provides procedures for counselling and discipline (clause 26), and 
termination of employment (clause 27). While each refer to processes within an Employee 
Code of Conduct that has never been developed, the processes within each clause are not 
exclusively associated with the Code, and each clause contains rights and obligations that may 
be used in appropriate cases.

[124] Mr Duggan’s 3 month term of probation ostensibly finished on 9 May 2016. While 
that is the case, his employment as a probationary employee continues now for reason of the 
“status quo” provision set out in the dispute resolution procedure. Clause 19.4 provides the 
following;

“While the above procedures are being followed, including the resolution of any dispute 
by FWA pursuant to clause 19.2.6, work must continue and the status quo must apply 
in accordance with the existing situation or practice that existed immediately prior to 
the subject matter of the grievance or dispute occurring. No party shall be prejudiced 
as to the final settlement by the continuance of work in accordance with this sub-
clause.”








[2016] FWC 5028

34

[125] With “status quo” meaning “the state in which. The state of affairs existing now or at 
some given date”,104 the plain meaning of the term within the Agreement is to put in place, 
with the instigation of the dispute, a freeze on there being any changes to the employment 
relationship, so as not to affect the current and future rights and liabilities or any party until 
the dispute is resolved. Neither Counsel drew my attention to any decided authority on the 
term. In the proper context of the Agreement, Mr Duggan may not be dismissed, disciplined 
or disadvantaged during the snap-freeze of the status quo; but then again, neither may he be 
confirmed as an ongoing employee. He therefore remains a probationary employee until the 
dispute is resolved.

[126] In the circumstances, I consider it to be appropriate and consistent with the parties’ 
legal rights and obligations under the Agreement for Mr Duggan’s probationary period to be 
extended for between 3 and 6 months from the date of this decision. I also consider it to be 
consistent with the Police Check Policy and appropriate in all the circumstances for Mr 
Duggan to be formally asked by the MFB to disclose in writing all charges and arrests since 
turning 18 years of age, whether or not they were withdrawn or he was acquitted, and that he 
be required to respond to that enquiry by way of a Statutory Declaration. Finally, I consider it 
to be consistent with the Agreement and appropriate that Mr Duggan be warned in writing, in 
the form of a first and final warning, that any future misconduct by him may lead to his 
dismissal, and that such warning be kept on file for 12 months from the date on which it is 
issued and acknowledged by Mr Duggan.

[127] The parties are directed to confer on these matters and endeavour to agree to the form 
and substance of each. In the absence of agreement between the parties on these things the 
matter will be relisted by me at 2:00 PM on Thursday, 25 August 2016 for further hearing, 
with a view to then making appropriate orders consistent with the Agreement. The Applicant 
is to advise my Chambers in writing by no later than 5 PM on Friday, 19 August 2016 of 
whether there is agreement with the Respondents on a suitable draft order consistent with the 
foregoing. In the absence of such agreement, a Notice of Listing will be issued for 25 August 
2016.

[128] Accordingly, I answer the second and third elements of the dispute as characterised by 
me in the following way;

Q2: Whether the dispute the subject of this proceeding is resolved.

A: No. The dispute is not resolved and will not be resolved until either the 
Commission issues, by consent, an order consistent with the matters set out above, or 
the Commission determines the dispute following a further hearing.

Q3: Whether the decision to terminate the employee’s employment can therefore 
now be implemented by the MFB.








[2016] FWC 5028

35

A: No. Mr Duggan remains a probationary employee until the resolution 
expressed in answer to Q2 is determined.

COMMISSIONER

Appearances:

P J Wheelahan of Counsel for the MFB.
M R Pearce SC, with D C Langmead of Counsel for the Respondents.

Hearing details:

2016.
Melbourne:
July 11.

Final written submissions:

Applicant, 19 July 2016
Respondents, 18 July 2016

Printed by authority of the Commonwealth Government Printer
Price code G, PR583314


OF THE FAIR WORK C AUSTRALIA MMISSION THE SEAL




 



[2016] FWC 5028

36

ATTACHMENT – MFB POLICE CHECK POLICY


Recruitment Police Criminal History Check The prior offences critera has been developed to take into consideration the responsibilities of a contemporary firefighter such as: . dealing with members of the community in vulnerable situations in an emergency environment entering private houses in an emergency environment without the occupant's supervision having access to keys to property including large commercial properties · dealing with members of the public including children and isolated elderly in relation to community education

It is each applicant's responsibility to read the Prior History critera and ensure they comply with the critera. prior to applying to become a recruit firefighter. All applicants will be required to supply a National Police Certificate prior to proceeding to Interview. Applicants will be notified when to obtain this record. Applicants are not required to obtain the record prior to notification from MFB. The National Police Certificate will be used to assess compliance with MFB's Prior Offences critera Please note that where the National Police Certificate shows a record of found guilty/charge/s proven this may be deemed to be a noncompliance with MFB's Prior Offences critera. This is irrespective of whether or not a conviction has been recorded.

Findings of guilt without conviction and findings of guilt resulting in a good behaviour bond are findings of guilt and will be released under the Victoria Police information release critera. Any applicant who deliberately supplies false, incomplete or misleading information in an attempt to gain employment with MFB will automatically disqualified from further consideration for employment. The cost of obtaining a National Police Certificate will be borne by the candidate. Permanent disqualification The following matters will be considered grounds for permanent disqualification from consideration as a potential employee. An offence history for the following categories:

Found guilty, charge proven on offences including but not limited to murder, armed robbery, sexual assault, arson, drug trafficking, break and enter, theft of motor vehicle, theft, malicious wounding Interim or temporary disqualification Serious offences within the past 10 years will be considered grounds for a 10 year disqualification, from consideration as a potential employee from date of offence. Matters considered as a serious offence include but are not limited to: Found guilty, charge proven on offences such as minor property damage, minor assault and inappropriate behaviour in a public place in the preceding 10 years Current Intervention Order(s) - A person who is subject to a current intervention order under S.4 of the Crimes (Family Violence) Act 1987 or an order of a corresponding nature made in another state or




 



[2016] FWC 5028

37

                                               
1 AE881005.
2 Exhibit MFB 4, Witness Statement of Gregory Leach, [11].
3 Ibid [10].
4 Ibid [7].
5 Exhibit MFB 4 Attachment GL-10 [11].
6 Exhibit MFB 4 [11]. 
7 Exhibit MFB 4 Attachment GL-3.
8 Exhibit MFB 4 Attachment GL-4.
9 Exhibit MFB 4 [12].
10 Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30.
11 Ibid [7].
12 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142.
13 [2016] NSWCATOD 30 [7]–[8].
14 Ibid [2]-[3].
15 Ibid [6].
16 Ibid [106].


territory, notwithstanding they have been granted an exemption from them being a prohibited person under the Firearms Act 1995. Other matters that may disqualify an applicant: outstanding warrants or court orders at the time of commencement as an MFB recruit; currently under investigation, charged or awaiting criminal proceedings. The Director, Human Resources has a discretionary power to consider applicants with all other offence histories




 

  

  

  



[2016] FWC 5028

38

                                                                                                                                                  
17 (1938) 60 CLR 336 at 362-3.
18 Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30 [11].
19 Ibid [117].
20 [2015] NSWCATOD 142 [5]–[11], [26].
21 Exhibit MFB 4 Attachment GL-10 [14].
22 [2016] NSWCATOD 30 [5]–[8].
23 Transcript PN 495.
24 Exhibit MFB 4 [15].
25 Ibid [17].
26 Ibid [14].
27 Ibid [17].
28 Exhibit MFB 4 Attachment GL-6.
29 Exhibit MFB 4 Attachment GL-9.
30 Exhibit MFB 4 Attachment GL-10.
31 Exhibit MFB 4 Attachment GL-10 [15].
32 Exhibit MFB 4 Attachment GL-10 [19].
33 Exhibit MFB 4 Attachment GL-10 [17]; see also Health Care Complaints Commission v Duggan  [2015] NSWCATOD 

142.
34 Exhibit MFB 4 Attachment GL-10 [26]-[27].
35 Exhibit Duggan 1, Short Minutes of Order.
36 Exhibit Duggan 5, Respondent’s Outline of Submissions, [7].
37 Exhibit MFB 4 Attachment GL-14.
38 Exhibit MFB 3, Draft Determination.
39 Exhibit MFB 4 [18]; Exhibit MFB 4 Attachment GL-12.
40 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; 

(2001) 203 CLR 645, [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, 

Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, at [25].
41 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz 

(Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services 

Union of Australia [2016] FWCFB 2019 [52].
42 [2016] FWC 2959.
43 CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.
44 SDA v Big W Discount Department Stores PR924554 at [23].
45 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [23].
46 Ibid.
47 MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes 

Australia Ltd  (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board

PR973884.
48 MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at 

[21]-[22].
49 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].
50 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to 

the parties.
51 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at 

[31]-[32].
52 CFMEU v AIRC (2001) 203 CLR 645 at [30]-[31]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v 

ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].
53 CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS 

Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].








[2016] FWC 5028

39

                                                                                                                                                  
54 AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36].
55 Fair Work Act 2009 (Cth) s 739(3).
56 Fair Work Act 2009 (Cth) s 739(5).
57 [2016] FCAFC 82.
58 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 

235 FCR 305 [85].
59 [2016] FCAFC 82 [29]-[34].
60 [2014] FWCFB 7447.
61 Acts Interpretation Act 1901 (Cth).
62 [2014] FWCFB 7447 [41].
63 Exhibit MFB 4 Attachment GL-14.
64 Exhibit MFB 1, Submissions of the Applicant, [10].
65 Ibid [12].
66 Exhibit Duggan 5, Submissions of the Respondent, [13].
67 Exhibit MFB 1 Attachment.
68 Exhibit MFB 4 Attachment GL-14.
69 Exhibit MFB 4 Attachment GL-9.
70 Transcript PN 83-85.
71 Ibid PN 135-136.
72 United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board [2016] FWCFB 2894 [33].
73 AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447 [41].
74 Omondi v Flinders University PR969599, at [40], with reference to Yerbury D and Karlsson M, The CCH Macquarie 

Dictionary of Employment and Industrial Relations (CCH Australia Limited, Sydney, 1992), p 274.
75 O'Rourke v Miller [1985] HCA 24; 156 CLR 342.
76 Commissioner of Police v Eaton [2013] HCA 2 [16], per Heydon J.
77 Mann v Ross and Others [1999] FCA 273, (1999) 97 IR 385, at 390.
78 Donaghey T, Termination of Employment, (First Edition), Lexis Nexis Butterworths, 2006, pp.103-104.
79 Tadd v Electronic Services Canberra Pty Ltd, AIRC unreported 1997, Print P5892.
80 Irving M, The Contract of Employment, Lexis Nexis Butterworths, 2012, p.685.
81 Transcript PN 496.
82 Exhibit MFB 4 Attachment GL-10 [10]-[13].
83 Ibid [15]-[16].
84 Transcript PN 516–520.
85 Ibid PN 555.
86 United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2016] FWCFB 2894 [26].
87 Ibid [33].
88 Applicant’s Reply to Questions for Counsel, 13 July 2016, [33].
89 Fair Work Regulations 2009 reg.1.07(2).
90 Transcript PN 135-136.
91 Applicant’s Reply to Questions for Counsel, 13 July 2016, [14].
92 Respondents’ Answers to Questions for Counsel, 18 July 2016.
93 Applicant’s Reply to Questions for Counsel, 13 July 2016, [13]-[14].
94 Ibid [22]-[23].
95 Exhibit MFB 4 Attachment GL-9.
96 Exhibit MFB 4 Attachment GL-3.
97 Transcript PN 430.
98 Ibid PN 396–400.








[2016] FWC 5028

40

                                                                                                                                                  
99 Ibid PN 256.
100 AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447 [41].
101 Encyclopaedic Australian Legal Dictionary, LexisNexis, online edition, accessed 29 July 2016.
102 Transcript PN 63.
103 Exhibit MFB 4 Attachment GL-10 [15].
104 Encyclopaedic Australian Legal Dictionary, LexisNexis, online edition, accessed 29 July 2016.

Cases cited by this decision: