[2018] FWC 4945
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Garth Duggan
v
Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (MFB)
(U2016/14351)

DEPUTY PRESIDENT MASSON

MELBOURNE, 23 AUGUST 2018

Application for relief from unfair dismissal - prior employment professional misconduct findings considered – dishonesty during recruitment and employment - valid reason found – application dismissed.

Introduction

[1] On 1 December 2016, Mr Garth Duggan (the Applicant) made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by the Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (the Respondent).

[2] The application indicated that the date that the Applicant’s dismissal took effect was 10 November 2016.

[3] On 15 December 2016, the Respondent filed a response to the unfair dismissal application.

[4] The matter was listed for conciliation before a Fair Work Commission Conciliator on 9 January 2017 but remained unresolved at the end of the conciliation process. After consideration and determination, both at first instance and on appeal, of jurisdictional objections to the application proceeding, the matter was listed for hearing before me on 14 March 2018.

[5] The Applicant filed written submissions and witness statements with the Fair Work Commission (the Commission) on 5 February 2018. The Respondent filed written submissions and witness statements in reply with the Commission on 26 February 2018.

[6] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s 396 of the Act, I find that the Applicant’s application was lodged with the Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that the questions of the Small Business Fair Dismissal Code or genuine redundancy do not apply.

The Hearing

[7] The Commission granted permission under s 596 of the Act for both parties to be represented by lawyers or paid agents. At the hearing, the Applicant was represented by Mr David Langmead of counsel who called the Applicant to give evidence.

[8] At the hearing, the Respondent was represented by Ms Rebecca Nelson of Counsel. Ms Nelson called five witnesses:

Background

[9] The Applicant’s short period of employment with the Respondent as a recruit firefighter has been the subject of extensive and protracted litigation since the termination of his employment on 10 November 2016. It is appropriate to detail that background and relevant uncontested facts in the present proceedings.

[10] The Applicant qualified as an osteopath in 2005 and practiced as such in NSW until March 2010. In November 2009 and February 2010, the Applicant treated a number of female patients following which complaints were made to the Police arising from his conduct during the treatments. As a consequence, he was charged with a number of counts of sexual assault and aggravated assault. Under the rules of practice, the Applicant was prevented from practicing as an osteopath from the time he was charged. He was tried in the District Court of NSW in September 2012 and subsequently acquitted.

[11] On 9 June 2015, the Health Care Complaints Commission (HCCC) filed a complaint of unsatisfactory professional conduct and professional misconduct with the NSW Civil and Administrative Tribunal (NCAT) against the Applicant in relation to his practice as an osteopath in 2009 and 2010. The HCCC served two volumes of evidence on the Applicant on 7 August 2015 and the matter was listed for a five day hearing in the week of 23 November 2015.

[12] On 2 October 2015, the Applicant sought leave to make an application for NCAT to terminate the inquiry and in accordance with directions issued by NCAT on 9 October 2015; he subsequently filed written submissions in support of his application on 23 October 2015. A date for the hearing of the application to terminate the matter was set down for 27 November 2015 with the other four days set down for the substantive hearing consequently vacated. The Applicant filed his submissions on 23 October 2015 and in his affidavit states that he “would not be re-applying for registration as an osteopath or health care professional at any time in the future”. A hearing of the application for dismissal of the HCCC application, which was opposed by the HCCC, was conducted by NCAT on 27 November 2015. The Applicant was self-represented in the proceedings.

[13] The application for termination of the HCCC proceedings was dismissed in a decision issued by NCAT on 27 November 2015 (NCAT Decision No. 1). 1 In dismissing the application, NCAT set down further dates for hearing of the HCCC complaint against the Applicant. The dates set down were 15, 16, 17, 18, 19 and 22 February 2016.

[14] When the Applicant applied for a position of firefighter with the Respondent, he was required as part of the recruitment process to provide a National Police Certificate issued by Victoria Police in accordance with the Respondent’s Police Check Policy. The certificate dated 16 September 2015 2 states, “at the date of issue there are no disclosable court outcomes recorded”.

[15] The Applicant undertook psychological testing some time prior to his formal interview with the Respondent which was conducted on 19 November 2015 and acknowledged in responses during that testing that since the age of 18, he had been arrested and charged by the police with committing a crime. 3 The Respondent has no record of any enquiries being made into these disclosures.

[16] The Applicant was offered employment with the Respondent by letter dated 23 December 2015. 4 The terms of the letter provided for a three-month probationary period effective from the date of commencement. The letter states that the Applicant’s employment was in accordance with the Metropolitan Fire and Emergency Services Board, United Firefighters Union Operational Staff Agreement 2010 (the Agreement),5 Metropolitan Fire Brigades Act 1958 (Vic) (the MFB Act) and “MFB policies and procedures (i.e. the MFB Workplace Behaviour Policy)”. The Applicant accepted the offer of employment on 12 January 2016 and commenced employment on 9 February 2016.

[17] In February 2016, the Applicant participated in the recruits course, which was required as part of his Recruit Firefighter Training. The recruits course fell within the period that the HCCC complaint against him was to be heard by NCAT. The Applicant did not appear or make submissions in those proceedings.

[18] On 17 March 2016, NCAT issued its decision (the NCAT Decision No. 2) 6 in respect of the HCCC complaint regarding the Applicant. The NCAT decision states as follows:

“(1) The practitioner, Garth Duggan, is reprimanded in the strongest terms under s 149(1)(a) of the National Law for his failure to adhere to the basic elements of informed patient consent;

(2) Pursuant to s 149C(1)(b) of the National Law, the Tribunal declares that the practitioner’s registration as an Osteopath on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order;

(3) Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until 6 years from the date of this order;

(4) The practitioner is prohibited, pursuant to s 149C(5)(a), from providing any “health services” as defined by s4 of the Health Care Complaints Act 1993 (NSW) until such time as a reinstatement order is made;

(5) A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of patients A-C in the schedule to the complaint, their corroborating witnesses, and any other patient or student named in evidence; this order supersedes and replaces order 1 in HCCC v Duggan [2015] NSWCATOD 142;

(6) Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National law as agreed, or failing agreement, liberty to restore to the list be assessed.”

[19] The Applicant did not bring the NCAT proceedings or the NCAT Decisions No.1 or No.2 to the Respondent’s attention during the recruitment process or subsequent to his commencement of employment with the Respondent. The Respondent was eventually notified of the NCAT Decision No.2 on or about 29 April 2016 after it was discovered and reported by a group of recruit firefighters.

[20] On 30 April 2016, the United Firefighters Union (UFU) on becoming aware of the Respondent’s concern over the Applicant’s prior conduct and the NCAT Decision No. 2, notified the Respondent that it was in dispute regarding the Applicant. The UFU requested that the Applicant be retained in employment, pursuant to the status quo provision of the dispute settlement clause of the Agreement, pending the resolution of the dispute.

[21] On 3 May 2016, the Respondent’s representatives met with the Applicant and the UFU to discuss the NCAT Decision No. 2. During this meeting, the Respondent advised that it was considering terminating the Applicant’s employment. Mr Greg Leach, who was at the time, the Respondent’s Executive Director Learning and Development, subsequently wrote to the Applicant on 5 May 2016. 7 The relevant extracts from that letter are as follows:

“……

During this meeting, Mr Higgins and I advised you that, having regard to the New South Wales Civil and Administrative Tribunal (NCAT) decision relating to your registration as an osteopath, the MFB had formed a 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, on the basis that:

1. You do not meet the standard of personal integrity that is an inherent requirement of an MFB firefighter.

2. A significant degree of trust is placed by the community in the MFB’s firefighters and is further entrusted to MFB firefighters through legislation and by reason of their duties. The MFB cannot conscionably hold you out to the community or to its other staff members as being a person in which they can repose the degree of trust that is expected of a firefighter.

3. Having regard to the fact that NCAT has determined to prohibit you from providing health services, the MFB does not consider that you are able to safely perform the inherent requirement of providing emergency medical assistance to members of the public. We note the comments of the Tribunal in Health Care Complaints Commission v Duggan (No. 2) of the seriousness of your conduct with three female patients and their following conclusion at paragraph 113:

“We find that a prohibition order, in conjunction with a lengthy period of deregistration is required because the practitioner is so manifestly unaware of, or indifferent to the court tenants of informed consent in practice such that he poses a substantial risk to the health of the public. On the basis of our findings this risk is most acute concerning physical contact with young female patients but is also of concern regarding any one on one assessment or treatment undertaken by the practitioner in any health field requiring a consent process.”

4. Noting the conclusion of the Tribunal your continued employment with the MFB poses a risk to the health and safety of MFB employees and members of the public, and potentially to your own safety.

You raised a number of matters during this meeting for the MFB’s consideration.

In order for the MFB to consider these matters I confirm that you will be provided with the opportunity to provide a written response addressing these issues.

This written response must be provided to the MFB by 5 PM on Sunday, 8 May 2016.

Stand down

I confirm that you are required not to report for duty at the MFB until further notice.

You will be paid as usual during this period of stand down.”

[22] On 8 May 2016, the Respondent received the Applicant’s response. 8 Relevant extracts from that response are produced below:

“Background

……

7. Some of the charges were withdrawn and Mr Duggan was acquitted on all remaining chargers.

…….

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 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 his 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.

14. In late 2015 he was informed that the Health Care Complaints Commission was to bring proceedings against him in the Occupational Division of the NSW Civil and Administrative Tribunal (NCAT) seeking that his registration as an osteopath be cancelled and that he be prohibited from practice. The proceedings arose from complaints from three former patients alleged clinically unwarranted touching of the pelvic and pubic regions of all three patients, and vaginal penetration of two of them. These incidents complained of were the same incidents the subject of the criminal trial.

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.

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

17. He made application to the NCAT seeking that the proceeding not take place as there was no public utility given the factors referred to in paragraph 15. This was supported by the Australian Osteopathic Association. This application was refused. (Reference to decision of NCAT Decision No. 1 [2015] NSWCATOD 142)

18. He told the Tribunal he was not in a financial position to be represented and would not be making submissions and would consent to any orders the Tribunal made. However he stated that he did so with no admission of wrongdoing or impropriety.

19. 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 recruit course and sought an adjournment. This was refused.

20. Mr Duggan did not appear at the hearing and was not represented.

21. On 17 March the tribunal gave its decision. (Reference to decision of NCAT Decision No. 2 [2016] NSWCATOD 30)

……….”

[23] On 10 May 2016, the United Firefighters Union of Australia (UFU) formally notified the Respondent in correspondence 9 of a dispute (the Dispute) in relation to the Applicant’s employment in accordance with the dispute resolution procedure in the Agreement.

[24] By letter dated 24 May 2016, 10 the Respondent informed the Applicant of its decision to terminate his employment. The relevant parts of that letter are as follows:

“………

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 six years. NCAT has found that you are “manifestly unaware of, or indifferent to the court 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 requiring a consent process”. (Health Care Complaints Commission v Duggan (No 2) paragraph 113).

The two professions of osteopath and firefighter 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 standards 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

……………”

[25] On 24 May 2016, the Respondent also filed an application in the Commission pursuant to s 739 of the Act for the Commission to deal with the Dispute. The issue the subject of the Dispute was whether the Respondent was restricted from implementing a decision to terminate the employment of the Applicant by reason of the operation of the Agreement. Relevantly, clause 27 of the Agreement provides as follows:

“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.”

[26] On 3 August 2016, Wilson C in MFESB v Garth Duggan 11 issued a decision in relation to the Dispute in accordance with clause 19 of the Agreement. The decision of the Commissioner was the subject of an appeal to a Full Bench of the Commission.

[27] On 10 November 2016, the Full Bench issued its decision, 12 allowing the appeal and quashing the decision and orders made at first instance by Wilson C. The Full Bench also determined the Dispute by confirming Commissioner Wilson’s decision at first instance to the effect that there had “not been a failure by the MFB to follow any process mandated by the Agreement with respect to termination of Mr Duggan’s employment in respect to a change in the Police Check Policy.”13

[28] After receiving a copy of the decision of the Full Bench of the Commission on 10 November 2016, the Respondent sent a letter to the Applicant dated 10 November 2016:

“Dear Mr Duggan

Further to our letter of 24 May 2016 and in light of the decision of the Full Bench of the Fair Work Commission published today, your employment will now terminate, effective immediately.

In accordance with clauses 27.2.1 and 27.2.3, the MFB will pay you in lieu of one week's notice.

You will be paid in respect any outstanding entitlements into the bank account in which you ordinarily received your pay.

Yours sincerely”

[29] The Applicant then filed an unfair dismissal application on 1 December 2016 in response to which the Respondent raised a jurisdictional objection, specifically that the Applicant had not met the minimum employment requirements of the Act and was therefore not entitled to make an unfair dismissal application. The Respondent’s jurisdictional objection was subsequently dealt with and ultimately dismissed by a decision 14 issued by Commissioner Ryan on 7 March 2017, and then on appeal, the objection was disposed of by a Full Bench decision15 issued on 25 September 2017.

Case for the Applicant

Evidence of Mr Garth Duggan

[30] The Applicant states that he commenced employment with the Respondent on 9 February 2016; was allocated to recruit course number 119; and completed 11 weeks of a 32 week course necessary to become a Firefighter Level 1. 16 The Applicant also gave evidence regarding the process of investigation and termination of his employment.

[31] In referring to the criminal charges in 2010, the Applicant states that several charges laid against him were withdrawn and that he was found not guilty of the remaining charges. 17 When pressed during cross-examination as to the accuracy of this statement, the Applicant confirmed that other charges were laid against him but were withdrawn before the trial but that he could not recall the number of charges.18 The Applicant referred to his disclosures he made during the MFB recruitment process in which he admitted to having been arrested and charged by police. The Applicant went on to state that at no stage had he sought to conceal from the Respondent the criminal charges that led to a NSW District Court hearing in 2012.19

[32] The Applicant gave evidence in relation to the NCAT proceedings that he:

•  Had been notified of the HCCC action commenced against him in 2015;

•  Was subsequently advised by the tribunal that a hearing was to be conducted in relation to the HCCC application on 18 and 19 February 2016;

•  Requested an adjournment of the February 2016 hearing dates until after the MFB recruits course that he was required to attend in February 2016, but his request was denied;

•  Did not attend the February 2016 NCAT proceedings as it coincided with the dates of the recruits course, failure to attend which would have jeopardised his employment with the Respondent;

•  Did not attend the February NCAT hearing as he had no intention of practicing as an osteopath in the future;

•  Did not engage counsel to represent him in the NCAT proceedings because he could not afford the cost; and

•  Did not raise the issue of the NCAT proceedings with the Respondent at the time of his recruitment or subsequently as he had received legal advice that the NCAT proceedings were not relevant to his application for employment with the Respondent and would not impact on his ability to perform emergency medical response (EMR) services as a firefighter. 20

[33] When cross examined in relation to the NCAT proceedings and the timing of those events relative to the recruitment process underway with the Respondent in 2015 the Applicant variously states as follows:

•  While initially claiming to have been unaware in August 2015 of the timing of the scheduled November 2015 NCAT hearing dates, 21 he subsequently conceded that he had been aware of the November 2015 hearing dates22;

•  While initially claiming to have been unaware of the timing of the NCAT proceedings listed for February 2016 at the time of the receipt of his employment offer from the Respondent on 23 December 2015, 23 he subsequently conceded that he was aware at the time of the employment offer of the listed NCAT hearing dates for February 2016 and that at no stage prior to giving oral evidence had he revealed such knowledge.24

•  He initially claimed that he did not represent himself in the NCAT proceedings 25 but then conceded that he represented himself up to the point where his application for the proceedings to be dismissed was heard on 27 November 2015 and rejected in the NCAT Decision No. 1.26

•  He confirmed statements he had made in his 8 May 2016 response to the proposed termination of his employment from the Respondent that the HCCC action had been commenced in “late 2015” 27 but then conceded that the HCCC action commenced in June 2015 was not in fact “late 2015”.28

•  He conceded that he had not disclosed to the MFB particular events in relation to the NCAT proceedings including, the date of the HCCC action filed in June 2015; the serving of the HCCC material on the Applicant in August 2015; his application for the HCCC application to be terminated; the Applicant’s filing of material with NCAT in support of his application for termination of the HCCC application; and his appearance at the NCAT proceedings on 27 November 2015. The Applicant further states that none of these events were disclosed during his interview process or following commencement of his employment with the Respondent and conceded he may have made mistakes in his statements and evidence. 29

•  When pressed as to whether he had requested an adjournment of the February 2016 NCAT hearing dates because it clashed with the MFB recruits course, he conceded that he could not remember whether he had made a request for an adjournment in writing. 30

•  He conceded that he had no evidence to confirm his statements that he had received advice from a Sydney barrister and two other solicitors, whose names he could not recall, that the NCAT proceedings were not relevant to his role as a firefighter. 31

•  He agreed that he had not disclosed the NCAT proceedings listed for 27 November 2015 at the time of his formal interview with the Respondent on 19 November 2015. The Applicant denied that his non-disclosure of the NCAT proceedings was motivated by a concern as to the implications of such disclosure to his application for employment with the Respondent. 32

[34] The Applicant was cross-examined at length in relation to the response he provided to the Respondent on 8 May 2016 regarding the proposed termination of his employment and whether he took issue with the NCAT findings. While now accepting the NCAT findings, the Applicant described his response of 8 May 2016 as presenting information to the Respondent that he would have provided to the NCAT proceeding had he appeared. The following extract from the Applicant’s cross-examination is relevant:

MS NELSON: “You address particular 16 that you:  "Inappropriately palpated and/or massaged around the area of patient B's perineum, labia and vaginal orifice, across their pelvic floor, inside their underwear whilst using oil on his fingers and un-gloved using a cross-fibre friction technique whilst she lay on her back without compelling clinical indication to do so."  You say that sentence that follows:  "The summation by NCAT at 71, misunderstands the evidence and is incorrect."  Do you now say that that was not incorrect?

MR DUGGAN: I'm not saying that.  I'm saying that I don't intend to go through the details of everything and argue over these issues.  I don't think that they're relevant to - I still agree that my position at that time - I said that it's incorrect.  I still agree that it's incorrect.  But what I'm saying in this hearing is that I don't - I'm not here to argue about the details of the NCAT decision.  If you take NCAT's decision at its highest, I'm willing to accept that the decision was made, but I'm not going to change the NCAT decision.  I've been living with the NCAT decision and it's going to stay and I'm not - I can't - we can't overturn that decision.  The decision is the decision and so on the basis of the decision being taken at its highest, I ask am I unable to work as a firefighter?

MS NELSON: Mr Duggan, that was a nice speech, but it wasn't an answer to my question.  You've been told that the strategy in this hearing today, haven't you, is not to go into the NCAT decision, haven't you?  That's what you were just saying?

MR DUGGAN: No, that's what I - that's the position that I've given to my - - -

MS NELSON: But that wasn't my question, Mr Duggan.  My question was this.  This response to the MFB sets out in detail where you said to the MFB that the NCAT decision was incorrect, doesn't it?

MR DUGGAN: Correct.  But where - - -

MS NELSON: And you still say that what you said on 8 May 2016 is truthful?

MR DUGGAN: Correct.

MS NELSON: So you still say, don't you, Mr Duggan, that as you do where I have just taken you to it, that the NCAT decision is incorrect?

MR DUGGAN: That this decision, this part on particular 16, that that part is incorrect, what they have written has been taken out of context.  That is correct.  I've said - - -

MS NELSON: So everywhere in this document, Mr Duggan, where you - what this document does is takes issue with the NCAT decision, doesn't it?

MR DUGGAN: I guess it tries to put it into - I was asked to give context to the NCAT decision.  It said that I was told by Mr Higgins and Mr Leach:  "Please provide a response with regards to your moral character and why should we allow you to" - - -

MS NELSON: I'm asking you a question that's nothing to do with that, Mr Duggan.  I'm asking you, this response to the MFB sets out where you say NCAT got it wrong, doesn't it, Mr Duggan?

MR DUGGAN: It sets out my position that I would have taken to NCAT or part of the position that I would have taken to NCAT if I had have been then gone to NCAT, that's correct.” 33

[35] In relation to the employment interview attended by the Applicant with the Respondent on 19 November 2015, he variously states as follows during cross examination:

•  While acknowledging the declaration 34 that he had signed that day required that he not mislead or withhold information from the Respondent, he confirmed his belief that unless he was specifically asked a question during interview he was not obliged to disclose information.35

•  He acknowledged that in answering a question during the interview in relation to stressful events he had experienced in his life, he chose not to disclose either the criminal or NCAT proceedings faced despite having described those events in his earlier evidence as extremely stressful. He explained this non-disclosure as due to his expectation that he would be asked questions during the interview relating to those particular matters due to the disclosures he had made during psychological testing. 36

•  While acknowledging having made particular statements during the interview which were recorded in the Interview Guide 37, he could not recall making certain other statements including “to walk away from osteopath” in response to a question regarding an important goal he had set for himself in the past. The Applicant asserted that particular reference did not make sense to him.38

•  The Applicant conceded that during his job interview he may have identified his osteopath skills as relevant to the firefighter position he had applied for. He rejected the proposition put to him that it was misleading of him to have identified his osteopathic skills as relevant when he was about to appear in the NCAT proceedings relating to the HCCC application for his disqualification as an osteopath. 39

Submissions of Applicant

[36] The Applicant submitted that the Respondent’s reasons for the dismissal of the Applicant had essentially three elements, those being that the Applicant:

(i) was not a person within whom the Respondent could have a level of trust and confidence;

(ii) was not a person within whom the Respondent could have a level of trust and confidence that is required of a firefighter in relation to the EMR role; and

(iii) did not meet the standard of personal integrity that is an inherent requirement of a firefighter employed by the Respondent.

[37] The Applicant submitted that the Respondent, through the evidence of Messrs Leach and Higgins, had failed to coherently describe what the required levels of trust and confidence of a firefighter is and that the evidence was nebulous and circular. Further, in relation to the required levels of personal integrity, the Respondent had failed to identify where the Applicant had not met those standards and had failed to tender any documents in evidence that explained the required standard.

[38] As regards to the EMR role requirements and the similarities between the role of an osteopath and a firefighter, the Applicant submitted that the common features reasoning of the Respondent was artificial and unsound.

[39] The Applicant further submitted that Mr Leach’s concerns about the Applicant one day being a supervisor of female firefighters, or being deployed to a station where he could be resting and reclining with female firefighters, were not raised in the proceedings before Wilson C and were consequently a recent invention and should be rejected.

[40] The Applicant submitted that the evidence of the Respondent revealed that it was concerned about the adverse publicity that may arise from the Applicant’s continued employment with the Respondent, but that such concern was not a valid reason for dismissal of the Applicant.

[41] The Applicant submitted that the findings of NCAT did not provide a sufficient basis for dismissal of the Applicant because:

(i) the conduct had occurred 6 years before the NCAT decision;

(ii) the NCAT findings were inconsistent with the acquittals at the criminal trial;

(iii) the NCAT findings were made in the absence of a contradictor or of any witnesses giving evidence viva voce;

(iv) the Applicant did not contest the hearing at NCAT because it clashed with his recruit training; he had given an undertaking that he would not practice again as an osteopath; and had received advice that the NCAT hearing could not affect his employment as a firefighter;

(v) NCAT based its findings on credit findings though no witnesses were cross-examined or gave viva voce evidence;

(vi) NCAT did not have recourse to all of the transcript and evidence at the criminal trial; and

(vii) The findings were of professional misconduct as an osteopath.

[42] The Applicant submitted that, despite the Respondent being aware that NCAT did not have access to the entire transcript from the criminal trial; the Respondent did not seek to read the criminal trial transcript before reaching its decision to dismiss the Applicant. Further, the Respondent had failed to give appropriate weight to all of the matters raised by the Applicant at [41] above and gave insufficient weight to the decision in the criminal proceeding.

[43] As regards clause 87 of the Agreement, the Applicant submitted that no material was adduced by the Respondent as to the interpretation of the clause and the opinions of the Respondent’s witnesses as to its operation, uninformed by direct involvement in negotiation of the Agreement, should be treated as inadmissible. The Applicant further submitted that Wilson C in MFESB v Duggan held that clause 87.2 enabled a firefighter to elect not to perform EMR to avoid harm to themselves or other firefighters. 40

[44] The Applicant also referred to Wilson C’s determining the dispute before him where he states:

[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. 41

[45] The Applicant submitted that there had been no decision of the Commission or the Federal Court that had overturned the reasons given by Wilson C as to why the Applicant’s pre and post-termination conduct did not warrant dismissal, and that those reasons should be accepted in the present matter.

[46] The Applicant submitted that the NCAT Decision No.2 acted to prevent him from practicing as an osteopath by reason of a national system of registration and regulation of health practitioners created by the enactment of laws by participating states and territories, of which both NSW and Victoria are participants.

[47] The Applicant further submitted that the prohibition order with respect to the provision of “health services” 42 made in the NCAT Decision No. 2, was made pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW) which has no counterpart in the Health Practitioner Regulation National Law (Victoria) Act 2009 and therefore falls to be determined on the normal principles of extra-territorial operation of laws. According to the Applicant, based on those principles, the prohibition on the provision of “health services” can only operate in Victoria in respect of health services having a real connection with NSW and cannot operate generally to prevent the Applicant from providing “health services” in Victoria.

[48] The Applicant further contends that “health services” are defined in both relevant NSW and Victorian legislation to include “ambulance services”, but there is no definition of “ambulance services” in either jurisdiction. Consequently, the term should bear its ordinary meaning, which in the Applicant’s submission would not include the EMR function which is not an ambulance service. The Applicant concedes that the provision of an ambulance service involves the provision of first aid but that is ancillary to the provision of patient transport, just as a fire service may perform first aid which is ancillary to firefighting.

[49] On the basis of the above, the Applicant contends that he is not prohibited from performing the EMR role by the NCAT Decision No. 2 orders and that reliance on such prohibition as a basis for the Applicant’s dismissal is misplaced.

[50] The Applicant rejected submissions of the Respondent that he had engaged in dishonesty during the investigation process. In doing so, it was conceded by the Applicant that the Commission, in considering whether there was valid reason for termination, was not confined to only consider the reasons relied on by the Respondent at the time of the dismissal but could rely on knowledge acquired by the Respondent after the dismissal. However, the Applicant contended that in the present case, the information now relied on by the Respondent as evidencing dishonesty was within its knowledge at the time of the dismissal.

[51] The Applicant referred to the NCAT Decisions No.1 and No. 2, which were in the knowledge of the Respondent at the time of the Applicant’s dismissal. Those decisions canvass many of the proceedings and events that the Respondent now contends the Applicant was dishonest about during the investigation process. The Applicant referred to the evidence of Respondent witnesses Messrs Leach and Higgins, where they both acknowledged having read the NCAT decision.

[52] The Applicant further submitted that it was inherently unlikely that he would have attempted to mislead the Respondent or the Commission in circumstances when he knew that the NCAT decisions set out the relevant facts and timeline.

Case for the Respondent

Evidence of Mr Gregory James Leach

[53] Mr Leach states that at the time of the Applicant’s employment with the Respondent, he was covered by the Agreement. Mr Leach states that entry level firefighters are appointed to the position of “Recruit Firefighter” and are required to undertake a 19 week recruit training course. 43

[54] Mr Leach states that the Applicant’s employment was subject to a probationary period of three months pursuant to the MFB Act and the Applicant’s employment contract. Mr Leach states that the Applicant was employed pursuant to the terms of an employment agreement dated 23 December 2015 and commenced employment with the Respondent on 9 February 2016. Therefore, the Applicant’s three month probation period commenced on 9 February 2016. 44

[55] Mr Leach states that as part of the selection process, the Applicant was required to provide the Respondent with a National Police Certificate. 45 The National Police Certificate, which was dated 16 September 2015, states “At the date of issue there are no disclosable court outcomes recorded”.46

[56] Mr Leach states that also as part of the selection process, the Applicant was required to disclose information relating to any police arrests and/or criminal charges since turning 18 years old. The Applicant responded that both were “true”, however, the Respondent does not have a record of any further inquiries being made into the any criminal charges against the Applicant. 47

[57] Mr Leach gave evidence that the interview process consisted of three panel members, being one operational representative, one HR representative and another member. 48 Mr Leach conceded that he was not present during the interview of the Applicant, however, he states that it was his understanding that the Applicant did not disclose the criminal charges during the interview.49 Mr Leach agreed that had the Applicant disclosed the criminal charges, he would not have been considered for employment.50 Mr Leach gave further evidence that had the Applicant also disclosed the impending NCAT proceedings, he would have automatically been disqualified and would not have progressed any further with his application.51

[58] Mr Leach states that he became aware of the NCAT decision on or around 26 April 2016 when he was notified by Mr Curtin. Mr Leach states that Mr Curtin described the issue to him as “…during his time as an osteopath Mr Duggan appeared to have been engaged in inappropriate touching of female patients. 52 Mr Leach gave evidence that NCAT found the complaints of ‘unsatisfactory professional conduct’ and ‘professional misconduct’ against the Applicant as substantiated.53 Mr Leach also confirmed during cross-examination that he was familiar with the NCAT decision and had “read it a number of times”.54

[59] Mr Leach states that the NCAT decision referred to the Applicant being the subject of a criminal trial in relation to allegations of assault against three female patients of the Applicant when he was practising as an osteopath, which were not found proven. Mr Leach states that the Applicant did not bring the NCAT decision to the attention of the Respondent when it was handed down on 17 March 2016 or at any time after. 55 Mr Leach agreed during examination in chief that by not disclosing the NCAT proceedings or the criminal proceedings to the Respondent, it demonstrates that the Applicant did not display integrity or open and transparent behaviour.56

[60] Mr Leach states that, in light of the NCAT decision, he held serious concerns about the Applicant’s suitability and fitness to hold the position of a firefighter. Mr Leach states that the role of the firefighter requires them to attend a range of events in the community, which are generally emergency situations, involving people in a vulnerable state who rely on and trust firefighters. 57

[61] Mr Leach gave evidence that the Respondent currently has a very low number of female firefighters, making up only 3.6% of its workforce. Mr Leach states that the Respondent has a “very deliberate strategy” 58 to increase the number of female firefighters and he believes that women may be concerned about applying for a role as a firefighter if they had knowledge of the matters raised in NCAT Decision No. 2.59 Mr Leach also raises the issue that firefighters on nightshift share sleeping facilities which vary from station to station. Some stations have dormitory accommodation whilst others have independent bedrooms, but regardless, Mr Leach states that firefighters have to “bed down together within the fire station” 60 and he had to give weight to considerations of risk to other firefighters, some of whom may be female.61

[62] Mr Leach states that firefighters have several core roles including the performance of EMR. Mr Leach states that EMR calls form a significant part of the role as the Respondent responds to more EMR calls than fire calls. Mr Leach states that EMR is a mandatory part of the recruit training program and the Respondent’s expectation is that all firefighters are trained in EMR and would respond to such calls. 62

[63] Mr Leach draws particular attention to clause 87 63 of the Agreement which deals with EMR calls:

“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.”

[64] Mr Leach states that firefighters performing the EMR role respond to “priority zero” events64, which is where a patient is unconscious and not breathing. 65 Mr Leach states that the Respondent must have trust and confidence in the people who perform those roles.66 Mr Leach gave evidence that an event where a patient was unconscious and not breathing is a situation of “implied consent” as without intervention, that patient could die.67 Mr Leach gave evidence that he believes that his concern that the Applicant could inappropriately touch such patients comes from the NCAT findings, in particular the Applicant’s lack of professional boundaries, the misuse of the power imbalance and his lack of professional standards.68

[65] Mr Leach states that clause 87.2 of the Agreement recognises that performing the EMR role over a long period of time can have a psychological impact on firefighters, so from time to time they may opt out of that role as part of their psychological welfare management. Mr Leach stresses that he does not believe that clause 87.2 permits a firefighter to permanently elect to opt out of the EMR role for reasons that are unrelated to their own health and safety. Furthermore, Mr Leach states that the Respondent would not be able to employ a recruit firefighter who could not perform the EMR role. 69 Mr Leach states that even if the Applicant did have a right under clause 87.2 of the Agreement not to perform the EMR role, it does not address his concerns held about the Applicant as he still does not meet the standard of personal integrity required of a firefighter.70

[66] Under cross-examination, Mr Leach conceded that the interpretation he had applied to the requirements of clause 87.2 of the Agreement and the ability of a firefighter to withdraw from providing EMR was based on his personal opinion. He had not been involved in the negotiation of the Agreement. Nor had the clause been subject to interpretation and determination by the Fair Work Commission. Mr Leach was also aware of other firefighters having withdrawn from EMR duties for various reasons. 71

[67] Mr Leach gave evidence that on 3 May 2016, he had a meeting with the Applicant and Mr Higgins. Mr Leach states that at that meeting, the Applicant was asked why he had not brought the NCAT decision to the attention of the Respondent. Mr Leach gave evidence that the Applicant states that the reason he did not bring it to the attention of the Respondent was because he was engaged in the recruit course at the time and therefore was not able to attend the hearing and that he was not going to defend the matter because he had started a new career with the Respondent. 72

[68] Mr Leach gave evidence that he does not recall being told by the Applicant that he had received legal advice that the NCAT proceedings would not have any effect on his career as a firefighter, 73 but does recall the Applicant telling him that defending the criminal charges cost him $420,000.00.74

[69] Under cross-examination, Mr Leach agreed that the Applicant would not have been given leave from the recruit course to attend the NCAT hearing and states that it would have created issues for the Applicant to have successfully completed the course if he had not attended. 75 Mr Leach gave evidence that he was aware that the NCAT hearing took place in the absence of the Applicant without the benefit of any submissions from the Applicant.76

[70] Mr Leach states that on or about 5 May 2016, he wrote to the Applicant to advise him that the Respondent considered that it was not appropriate for his employment to continue beyond the expiry of his probationary period on 9 May 2016. 77

[71] Mr Leach states that on 8 May 2016, he received an email from the Applicant with a response. 78 Mr Leach states that he was concerned that the Applicant did not show any insight into the events that led NCAT making adverse findings against him. Mr Leach states that the Applicant was adamant that his patient care was appropriate and he did not acknowledge that he may have acted in an inappropriate manner.79 Mr Leach states that he continued to hold concerns that, due to the Applicant’s lack of insight, there was a risk that he could inappropriately touch a female member of the public in an emergency situation.80 Mr Leach gave evidence about a meeting with the Applicant:

“…I found it quite difficult when I met with Mr Duggan when he was pushing back quite strongly and saying there was no wrongdoing on his behalf after having such strong criticism come through from NCAT, there couldn’t be any insight or reflection about that”. 81

[72] Mr Leach states that now that the Applicant has given evidence that he accepts the findings of NCAT, it “potentially…demonstrates some reflection and insight into the matter”. 82

[73] Mr Leach states that on 24 May 2016, he sent the Applicant a letter advising him a decision had been made to terminate his employment, but that in accordance with the dispute provisions under the Agreement, it would not be implemented until resolution of the dispute notified under the Agreement. 83

[74] Mr Leach states that the decision to terminate the Applicant also took into account the further information that the Applicant provided on 8 May 2016 and his lack of insight into his behaviour. Mr Leach states that he could only make a decision on the information that was in front of him and it was not for the Respondent to go behind the NCAT decision, or to make its own findings on evidence that may or may not have been led during the NCAT proceedings. 84

[75] Mr Leach states that on 24 May 2016, he called the Applicant to advise him that a decision had been made to terminate his employment and that a letter had been sent advising of same. 85 Mr Leach states that he told the Applicant that the Respondent was aiming to attract more women to the workforce and that it would not look good if the Respondent was employing people who have been subject to proceedings about touching women without informed consent.86 Mr Leach denied that he advised the Applicant that a different decision may have been made but for the Respondent’s concern about adverse publicity.87

[76] Under cross-examination, Mr Leach agreed that at the previous Commission hearing before Commissioner Wilson, he gave evidence that he gave more weight to the NCAT decision than the decision in the criminal trial. 88 However, he states that:

“I’m not sure I accorded it more weight…I gave it weight inasmuch as it was a matter where they’d considered the issues arising out of the County Court matter in a different context to criminal proceedings and it went to the matter of integrity and trust for me. So they were the key matters that were of concern to me here”. 89

[77] Mr Leach agreed that the Respondent did not rely on or advise the Applicant in its letters to him on 5 May 2018 or 24 May 2018 that they were terminating his employment on the basis of his non-disclosure of the criminal proceedings 90 or the NCAT proceedings.91 Mr Leach confirmed that the reasons relied on in terminating the Applicant’s employment in 2016 were the reasons set out in the letters of 5 May 2016 and 24 May 2016.92

[78] Mr Leach was cross-examined with respect to the personal integrity requirements of the Respondent, which was one of the grounds on which the Applicant was dismissed, and variously states that:

•  Regulation 12 of the MFB Act sets down the requirements of an individual;

•  The Public Administration Act 2004 sets down the code of conduct for public sector employees;

•  Reference is made to a “fit and proper person” requirement;

•  Concedes that the interview guide 93 includes an example of potential theft during employment to guide the interviewers in addressing the “personal integrity” requirements;

•  Concedes that instances of employees of the Respondent being charged with not being a “fit and proper” person have arisen from conduct during their employment with the Respondent rather than conduct prior to their employment with the Respondent;

•  Reaffirmed that the Applicant’s conduct as revealed in the NCAT proceedings was inconsistent with the standards required of a firefighter. 94

[79] Mr Leach states during his evidence that he was not aware at any time prior to the decision to terminate the Applicant, of the various NCAT processes that had occurred or were underway prior to the Applicant’s formal job interview on 27 November 2015 or employment offer from the Respondent, those events being:

(i) the complaint lodged by the HCCC on 9 June 2015;

(ii) the filing and serving of two volumes of evidence by the HCCC on the Applicant;

(iii) the Applicant’s appearance at NCAT hearings prior to his job interview;

(iv) the Applicant’s filing of written submissions to NCAT seeking the termination of the HCCC application; and

(v) the Applicant’s knowledge of the February 2016 NCAT hearing dates. 95

Evidence of Mr James Patrick Higgins

[80] Mr Higgins states that he was employed by the Respondent from April 2014 to September 2017 in the role of Chief Executive Officer. 96 Mr Higgins states that he first became aware of the NCAT decision in April 2016 and recalls attending a meeting on 29 April 2016 with Ms Erin Rice, Mr Leach and Mr Curtin during which the issue was discussed. Mr Higgins states that during this meeting he expressed concerns about the findings and the impact for the Applicant and his employment with the Respondent, as it was his view that there was a significant risk for the Respondent in continuing with the employment of the Applicant. 97

[81] Mr Higgins states that his concern was twofold. The first concern centred on the health and welfare of the public, particularly in circumstances where the Applicant would be required to provide medical treatment as a first responder to vulnerable members of the community. Secondly, Mr Higgins considers the potential reputational damage to the fire brigade given the high level of trust reposed in firefighters by the community. Mr Higgins states that another concern lay in the fact that the Applicant’s behaviour found to have occurred by NCAT, was inconsistent with the values and expectations of the Respondent.  98

[82] Mr Higgins gave evidence that he recalls meeting with Mr Peter Marshall and Mr Ross Fusca from the UFU on 3 May 2016, during which he was informed that Mr Fusca, a former Federal Police Officer, had reviewed the Applicant's case and concluded that there were significant defects in the decision. It appeared to Mr Higgins that Mr Marshall sought to persuade him that the report was flawed; it should not be relied upon; and to discourage him against proceeding with any disciplinary action against the Applicant. Mr Higgins states that he advised Mr Fusca and Mr Marshall that he had not made a decision and that he would first meet with the Applicant before any decision was made. 99

[83] Mr Higgins states that on 3 May 2016 he had a meeting with the Applicant, Mr Leach and Mr Fusca during which he informed the Applicant that the NCAT report and findings had cast serious doubt as to his suitability as a firefighter for the two reasons described above. 100 When Mr Higgins asked the Applicant why he had not made the Respondent aware of the NCAT decision, the Applicant’s response was that he had declared the matter in the pre-selection process.101

[84] Mr Higgins states that when questioned as to his suitability to be a firefighter in that meeting, the Applicant responded that he that he believed that he had not done anything wrong in the way he provided treatment to the patients in question, and that there was a school of thought that supported his methods.   He also emphasised that he was found not guilty of the criminal charge. 102

[85] Mr Higgins gave evidence that the Applicant explained that the reason he did not attend or give any evidence at the NCAT hearing was due to lack of funds to attend or obtain representation, as well as the fact that he was no he was no longer going to be an osteopath in any event.  103

[86] Mr Higgins states that at the conclusion of the meeting, he requested the Applicant put in writing his specific responses to the issues that were raised in the meeting so that further consideration of his comments could be made.  104

[87] Mr Higgins confirmed that he was aware that a letter dated 5 May 2016, signed by Mr Leach, was sent to the Applicant, the purpose of which was to seek a response from the Applicant in relation to matters raised during the meeting. Mr Higgins states that even after obtaining the written material provided by the Applicant, he was not persuaded that he was a fit and proper person to be a fire fighter. 105 Mr Higgins further surmises that if the NCAT proceedings had been disclosed prior to the Applicant commencing his employment, the conduct in question would have still precluded him from being engaged as an employee as he would have been regarded as unsuitable. Mr Higgins notes that this perception was unlikely to be challenged as the Applicant had no history with the Respondent to call upon to persuade them otherwise.

[88] Mr Higgins states that in making his assessment, he considered that the integrity of firefighters and the trust placed upon them by the community are paramount aspects of the role.   Mr Higgins states that to allow the Applicant to remain as a firefighter with the professional misconduct findings against him, would be contrary to the Respondent's values and would be a breach of the standards the community expects of its fire fighters.  106

[89] Mr Higgins recognises that while the Agreement provides fire fighters with the ability to opt-out of the emergency response work in order to protect or maintain their own wellbeing, he notes that this is limited to current firefighters who already perform that work rather than trainees or new firefighters. Mr Higgins reiterates that emergency first response is a fundamental part of the role and cannot be opted out of at the discretion of a firefighter other than in exceptional circumstances. Mr Higgins submits that even if the Applicant had raised the possibility of opting out of EMR duties at the time his employment was being considered, Mr Higgins would not have entertained it. Mr Higgins further submitted that there would be no way for the Respondent to guarantee that a firefighter sent with a crew to an incident would not have to provide emergency medical care. 107

[90] Mr Higgins states that as a consequence of accepting the NCAT findings, the nature of the misconduct in question lead him to conclude that the Applicant should be dismissed from his employment as he was not a fit and suitable person, irrespective of the fact that the Applicant had not appeared at the NCAT hearing.   Mr Higgins further states that he approved the letter of termination sent to the Applicant on 24 May 2016 from Mr Leach. 108

[91] Under-cross examination, Mr Higgins was taken to one of the reasons for the termination of the Applicant, that being the similarity of the roles of osteopath and firefighter, including the requirement for high levels of trust and confidence to be held in both and the likelihood of close physical contact. While conceding that osteopath consultations generally take place in private with conscious patients, the circumstances confronting firefighters can involve a range of scenarios and it would not necessarily be the case that there would be other people around when a firefighter was required to undertake EMR duties. 109

[92] Mr Higgins concedes that the roles of osteopath and a firefighter had obvious differences but the requirements for professional conduct and trust were “obvious parallels”. 110

[93] When pressed by the Applicant’s Counsel to describe the level of trust required of a firefighter and how the Applicant fell short of that standard Mr Higgins states as follows:

MR LANGMEAD: “The letter also says that, "The MFB does not consider that Mr Duggan is a person in which it can have the level of trust and confidence that is required of a firefighter."  What do you say is the level of trust and confidence that is required of a firefighter?

MR HIGGINS: It's absolutely at the highest level.  People in the community have to have complete faith and trust that firefighters who are potentially coming into their homes or supporting them at their most vulnerable are people that they can have complete faith and trust in.  The circumstances here are such that that trust and confidence could erode in the community and in fact NCAT found that Mr Duggan was not someone that could enjoy the public's trust.

MR LANGMEAD: In relation to the practice of osteopathy and other health professions?

MR HIGGINS: I think that they drew that - my assessment, my personal assessment of their findings were that they drew that in terms of his professional and clinical behaviour and that most certainly there are parallels from that point of view in terms of the integrity and the responsibility that firefighters have in the community, including their role in emergency medical response.

MR LANGMEAD: How do you we find this level which you say must be achieved?

MR HIGGINS: You'll have to be clearer in your - how do we find the level?

MR LANGMEAD: Well, you've said he is not a person which it can have a level of trust and confidence - what is that level of trust and confidence?

MR HIGGINS: Clearly in my view it wasn't reached in relation to the findings that NCAT made in respect of Mr Duggan's professional conduct so it was my assessment and the assessment of the MFB that he fell well below the standard that we have and expect for firefighters in our community and in terms of enjoying the public's trust.  That is an issue that is paramount for emergency services.

MR LANGMEAD: That was an event which - or about events which occurred six years ago, eight years ago now?

MR HIGGINS: So my assessment was that this was repeated behaviour.  It wasn't a one-off, that there were a number of findings where Mr Duggan had engaged in behaviour that was inconsistent with the professional standards that MFB applied to firefighters who joined the organisation as recruits and my earlier advice is that if the MFB was aware of those findings at the time that Mr Duggan had made his application, that his application would not have proceeded.” 111

[94] Mr Higgins also states during his evidence that, at the time of the Applicant’s dismissal, he was not aware of the particular NCAT proceedings involving the Applicant that had occurred prior to the Applicant’s employment interview or offer of employment, specifically:

(i) the complaint lodged by the HCCC on 9 June 2015;

(ii) the filing and serving of two volumes of evidence on the Applicant by the HCCC;

(iii) the Applicant’s appearance at NCAT hearings prior to his job interview;

(iv) the Applicant’s filing of written submissions to NCAT seeking the termination of the HCCC application. 112

[95] Mr Leach also confirmed under cross-examination that he too had read the NCAT decision carefully and thoroughly. 113

Evidence of Mr Trent Curtin

[96] Mr Curtin gave evidence that in his role as Assistant Chief Fire Officer – Director Operational Training, a role he had held since 2015, he was responsible for developing and executing the Respondent’s training department strategic direction and had also previously led operational response teams during large scale emergencies. 114

[97] Mr Curtin states that having reviewed the NCAT Decision No.2, he formed the view that the Applicant did not have the integrity required of a firefighter as he had breached the trust of the women that he had treated in his capacity as an osteopath. He further states that the community requires trust in firefighters because of the role firefighters fulfil during emergency situations and that the community hold firefighters “in a high level of integrity and trust” and that the trust “is implicit for anyone that wears the uniform.” 115

[98] With respect to the EMR duties, Mr Curtin states they are an inherent requirement of the firefighter role and understands that the option for a firefighter to withdraw from such duties pursuant to clause 87.2 of the Agreement is intended for situations where a firefighter may have been psychologically impacted by performing the EMR duties. 116 Mr Curtin was not aware of any situations where opting out of EMR duties by a firefighter had occurred.117 Mr Curtin concedes that his view of the meaning and effect of clause 87.2 was based on his practical experience of applying the Agreement, as he had not been involved in the negotiation of the Agreement at the time the clause was inserted. He also states that it is possible to have members of crews on appliances not qualified in EMR, such as Level 1 firefighters who have just finished a recruit course, and that this creates significant challenges.118

[99] With respect to the performance of EMR duties, Mr Curtin variously states that:

•  At a typical EMR incident a single appliance (general purpose fire truck) would be in attendance;

•  The Respondent’s firefighters would generally be the first responder to arrive at an incident requiring EMR;

•  Typically, all crew members will be involved in the management of an EMR event and in the case of multiple patients, generally all crew members will be involved in patient care;

•  The majority of patients the Respondent staff attend to during EMR events are unconscious and not breathing and that consent to treatment is implied;

•  During EMR events, Respondent staff come into contact with unclothed people on regular occasions and when using defibrillators on patients it may be necessary to cut off clothing, expose chests and deliver shocks.

•  The performance of EMR requires “plenty of touching and very close physical proximity to patients.” 119

[100] When cross-examined in relation to EMR incidents, Mr Curtin concedes that, normally there would be more than just the patient and the firefighter present; that if a patient was alone with a firefighter it would “usually” only be for a short period of time; and that it would be a rare occasion for protocols requiring the presence of two staff to be breached.  120 While conceding that the treatment of a patient by an osteopath in a clinic was quite different from a firefighter performing EMR, Mr Curtin opines that there were common features including, the application of medical assessment; the undertaking of medical procedures; and a power imbalance between people.121

Evidence of Mr Robert Purcell

[101] Mr Purcell, who is currently the Acting Deputy Chief Officer of the Respondent, states that between 2011 and 2016 he was Director for Community Resilience Emergency Management, in which capacity he led the Community Resilience Department. That Department set policy and practice for the organisation with respect to “programs, systems, activities and engagement that help build safer and more resilient communities” 122

[102] Mr Purcell gives evidence that one of the key elements of the community resilience program was that of school education programs which included delivery of programs for pre-primary (Prep), upper primary, secondary and senior secondary students. 123 He further states that while not all of the 1800 firefighters working for the Respondent were required to deliver education programs, on any given day approximately 300 firefighters were rostered on and potentially delivering educational and broader engagement activities.

[103] Mr Purcell further states that until 1 August 2016 the Respondent did not require firefighters delivering education programs to obtain Working with Children Checks (WWC) accreditation, and while not required by law, the Respondent and the UFU have agreed to promote and encourage volunteer sign up by firefighters. He further states that the Respondent has also agreed a policy position going forward that all recruits will be required to have WWC. 124

Evidence of Mr Phillip Teehan

[104] Mr Teehan was called to give expert evidence 125 by the Respondent which went to the veracity of the NCAT Decision No. 2 findings and particular treatment techniques, specifically pelvic and per vagina techniques.

[105] Mr Teehan states in his opinion that he discerned no error in the NCAT Decision No. 2 with respect to Particulars 2, 11, 13, 20, 22, 26 and he accepted the findings reached with respect to Particulars 4, 12, 21 and 27. He discerned no error of the NCAT Decision no. 2 with respect to its specific finding that “The practitioner, Garth Duggan, is reprimanded in the strongest terms under s 149(1)(a) of the National Law for his failure to adhere to the basic elements of informed patient consent;”

[106] Mr Teehan also expressed opinions as to the assessment and treatment of asymptomatic regions, the use of per vagina techniques and whether the wearing of gloves for examination and treatment of lower abdomen, pelvic and genital areas of female patients was appropriate.

Submissions of Respondent

[107] The Respondent submits that there were two valid reasons for the dismissal of the Applicant, those being:

(i) The Applicant was not a fit and proper person to be a firefighter based on the findings by NCAT; that the conduct he had engaged in was so serious that his registration as an osteopath had been cancelled; he was unable to re-apply for registration for a period of six years; and he was prohibited from providing any “health services” until his registration as an osteopath is restored.

(ii) The Applicant had been dishonest both in relation to his failure to bring the NCAT decision to the Respondent’s attention during his employment and in his response dated 5 May 2016 to his proposed termination of employment.

[108] With respect to the Applicant being found not to be a “fit and proper” person by it, the Respondent contends that:

(i) the Applicant’s behaviour noted in the NCAT Decision No. 2 is inconsistent with the behaviour expected of a firefighter;

(ii) employing a firefighter found publicly to have engaged in the behaviour noted in the NCAT Decision No. 2 would reduce the community’s trust and confidence in the Respondent; and

(iii) the inability of the Applicant to perform his EMR role given the orders of NCAT prohibiting the Applicant from providing “health services”.

[109] The Respondent relies on the evidence of Messrs Leach, Higgins and Curtin as to why the level of trust and confidence of the community in firefighters is so high and rejects the Applicant’s submission that “past professional misconduct” of the Applicant as an osteopath has no bearing on his performance of the role of a firefighter.

[110] The Respondent submits that the Applicant sought to rely on his osteopathic skills or experience or qualifications as relevant to his being employed as a firefighter during his interview for employment on 19 November 2015, but failed to disclose that he was facing an NCAT hearing on 27 November 2015 because of complaints raised by the HCCC regarding his conduct with a number of female patients.

[111] The Respondent further submits that the Applicant’s contentions that the NCAT Decision No. 2 and the NCAT processes cannot be relied upon should be disregarded on the basis of the Applicant’s own submissions and evidence that he did not take issue with the NCAT findings. 126

[112] The Respondent submits that the Applicant had been dishonest during his recruitment and employment with the Respondent as evidenced by the Applicant’s:

(i) representation of his osteopathic skills as relevant to his appointment as a firefighter during an interview on 19 November 2015 when a hearing relating to an application by the HCCC for his osteopath de-registration was to be conducted by NCAT on 27 November 2015;

(ii) failure to disclose during the recruitment and interview process any details of the NCAT process that had commenced on 9 June 2015;

(iii) awareness at the time of receipt of his employment offer from the Respondent on 23 December 2015 of the NCAT Decision No. 1 of 27 November 2015 in which it determined not to terminate the HCCC application and to list the matter for a hearing on 15,17,18,19 and 22 February 2016;

(iv) failure to advise the Respondent of the NCAT proceedings and NCAT Decision No. 1 at the time of his acceptance of the Respondent’s offer of employment on 12 January 2016 or on commencement of employment on 9 February 2016; and

(v) failure to advise the Respondent of the NCAT decision No.2 of 17 March 2016.

[113] The Respondent submits that the Applicant had been plainly dishonest and less than frank during the investigation process initiated by the Respondent and at the hearing of this matter as evidenced by:

(i) the Applicant’s selective reliance on transcript from the criminal trial in his response of 8 May 2016;

(ii) the Background section of the 8 May 2016 response included a number of incorrect assertions and misleading information; and

(iii) the misrepresentations in the Applicant’s 8 May 2016 response were compounded by further incorrect assertions and misrepresentation in the Applicant’s evidence in this matter.

[114] The Respondent further submits that the Applicant’s failure to disclose the NCAT proceedings, his presentation of a misleading picture of when he became aware of those proceedings and his questioning the validity of the NCAT findings was done in light of the requirement, of which he acknowledged, that he give true and honest answers to questions.

Protection from Unfair Dismissal

[115] An order for reinstatement or compensation may only be issued where I am satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal.

[116] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

[117] There is no dispute, and I am satisfied, that the Applicant has completed the minimum employment period, and is covered by a modern award. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

[118] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[119] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

[120] In this case, there was no dispute and I am satisfied that the matter was confined to a determination of that element contained in s 385(b) of the Act, specifically, whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable:

[121] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd127 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[122] I am under a duty to consider each of these criteria in reaching my conclusion.128

[123] I will now consider each of the criteria at s 387 of the Act separately.

Was there a valid reason - s.387(a)

[124] A valid reason for the dismissal of the Applicant need not be the reason given to the Applicant at the time of the dismissal.129 The reasons should be “…sound, defensible and well founded”130 and should not be “…capricious, fanciful, spiteful or prejudiced.”131

[125] Having been dismissed for misconduct, the Commission must first satisfy itself that, on the balance of probabilities that the alleged misconduct occurred.132 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct, without applying a standard of proof higher than the balance of probabilities.133

[126] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.134

[127] The Respondent contends that there are two grounds on which it is open for the Commission to find that a valid reason for the dismissal of the Applicant exists. Those grounds can be summarised as:

(i) Based on the findings of the NCAT Decision No. 2, the Applicant was not a fit and proper person with the necessary level of personal integrity required of a firefighter; and

(ii) The Applicant had been dishonest during the recruitment process, his employment and the investigation.

[128] I will now deal with the contentions put by the Respondent regarding the Applicant’s capacity and conduct.

Was the Applicant a fit and proper person?

[129] The Applicant was essentially dismissed for findings made by NCAT regarding his professional misconduct while practicing as an osteopath, misconduct that had occurred over six years previously for which he had been criminally tried and acquitted in 2012 and then de-registered as an osteopath in 2016. The Respondent concluded that the conduct revealed in the NCAT Decision No. 2 was inconsistent with the Applicant’s employment as a firefighter. The Respondent’s reasons given at the time of the Applicant’s dismissal were not in relation to the Applicant’s conduct as an employee of the Respondent.

[130] While the Respondent summarised their concerns with the Applicant that he was not a fit and proper person based on the misconduct findings made in the NCAT decision, a number of specific concerns were raised during the evidence of Messrs Leach and Higgins regarding the Applicant. These concerns included:

•  The failure of the Applicant to disclose the criminal and NCAT proceedings during his recruitment disclosed a lack of integrity and open and transparent behaviour;

•  Serious concerns held having regard to the requirement for firefighters to interact with community members in a vulnerable state who rely on and trust firefighters;

•  At a time when the Respondent was trying to attract more women, it was believed that women would be concerned about applying for a role as a firefighter if they had knowledge of the matters raised in the NCAT Decision No. 2;

•  The requirement that firefighters share dormitory accommodation on night shifts and the risk that the Applicant may present to other firefighters;

•  The heath and welfare of the community would be put at risk by the Applicant in his first responder capacity;

•  Potential reputational damage to the Respondent given the higher level of trust reposed in firefighters;

•  Applicant’s behaviour inconsistent with values and expectations of the Respondent;

•  Integrity of firefighters and trust placed in them by the community was paramount;

•  Applicant’s conduct would be in breach of the standards the community expects of its firefighters; and

•  The role of osteopath and firefighter were similar in terms of the high levels of trust and confidence and the close physical contact required.

[131] A number of the concerns raised by the Respondent appeared to be based on its speculation that the professional misconduct of the kind disclosed by the NCAT Decision No. 2 could be repeated if the Applicant remained employed by the Respondent. I note that several years have elapsed since the incidents of 2009 and 2010. Further, the environment within which the Applicant was then employed, that of an osteopath providing private consultations, is in my view in almost all respects different to that in which the Applicant would be engaged as a firefighter. I am not persuaded that suspicions or fears the Respondent may hold regarding the future behaviour of the Applicant or the impact the Applicant’s employment may have on female recruiting efforts are valid reasons for his dismissal.

[132] The Respondent also contends that as the roles of osteopath and firefighter are similar in certain respects, the findings of professional misconduct as an osteopath are directly relevant to his employment with the Respondent. Evidence adduced by the Respondent went to those similarities in terms of the required levels of trust and confidence, although Mr Higgins concedes the obvious differences between the two.

[133] While I accept that patients must place a high degree of trust in a medical practitioner and that the community must also place a high degree of trust in firefighters in an emergency situation, the context and circumstances are very different in my view, arguably save for the EMR requirements of firefighters. In the latter case of EMR, I am not persuaded however that a private consultation with an osteopath is directly analogous to the performance of EMR by a firefighter. In reaching that conclusion, I have had particular regard to Mr Curtin’s evidence to which I have referred to above at paragraphs [99]-[100] where he concedes that the incidence of a firefighter performing EMR without other persons present are likely to be rare.

[134] The Respondent’s witnesses repeatedly referred to the standards of trust and confidence and the levels of personal integrity required of a firefighter and that the Applicant failed to meet those standards in his capacity as an osteopath. Reference was made by Mr Leach to the Code of Conduct for Victorian Public Sector Employees, although no documents that would assist establish the required standards of conduct were tendered in evidence. Nor were the specific conduct shortcomings of the Applicant against those standards adequately described. In these circumstances, I am not persuaded that the Respondent’s claims that the Applicant by his prior professional misconduct has failed to meet the standards of trust and confidence required of a firefighter are sustained.

[135] I am also not persuaded of the occupational parallels between an osteopath and a firefighter as contended by the Respondent. I am also not satisfied that the findings made by NCAT in relation to the Applicant’s conduct as an osteopath are of relevance to the performance of his duties as a firefighter. Consequently the NCAT Decision No. 2 and the findings made by NCAT do not in themselves provide a basis for the termination of the Applicant’s employment in my view.

[136] It follows from the above that I do not accept that the Respondent’s grounds for dismissing the Applicant, that being he was a not a fit and proper person based on the NCAT findings, found a valid reason for his dismissal.

[137] As regards the claimed lack of integrity evidenced by the Applicant’s failure to disclose the NCAT proceedings, I deal with those matters below and whether the Applicant’s conduct was dishonest in the course of his recruitment and employment with the Respondent.

Was the Applicant dishonest during the recruitment process?

[138] The Applicant disclosed during the recruitment process that he had been arrested since turning 18 year old and had been charged by the police for committing a crime. These disclosures were made through the course of the Applicant answering questions as part of psychological testing. A specific note was made in the Report to the following effect:

“Garth describes some difficulty with the police. It will be important to determine when these events happened, and the seriousness of the charges.” 135

[139] The Respondent for reasons that are unclear, failed to follow up on the Applicant’s arrest and criminal charge disclosures. This is evident from the specific failure of the Respondent to raise the question of prior arrest or criminal charges during the interview of the Applicant on 19 November 2015 as part of the Interview Closing. There was no obligation on the part of the Applicant to do other than answer honestly in response to questions asked in relation to his previous police difficulties. Clearly there were failures on the part of the Respondent in carrying out necessary due diligence which reflects poorly on its systems.

[140] I accept the evidence of the Respondent that, had the Applicant’s arrest and criminal charge disclosures been properly investigated by it, the Applicant’s employment application with the Respondent would not have progressed. The fact that the Applicant would not have progressed through the recruitment process had the Respondent made proper enquiries does not retrospectively found a basis for dismissal or demonstrate any dishonesty on the part of the Applicant. I am satisfied that the Applicant’s failure to volunteer further information beyond his affirmative responses to arrest and charge questions did not constitute dishonesty.

[141] The Applicant chose not to disclose to the Respondent any aspect of the HCCC application filed against him and of the proceedings underway in NCAT at the time of his recruitment process or after he gained employment with the Respondent. The Applicant ultimately provided information in relation to the NCAT proceedings only in response to the investigation initiated by the Respondent after it became aware of the NCAT Decision No. 2 on or about 29 April 2016.

[142] The Applicant justified his non-disclosure of the NCAT proceedings in part on the basis of legal advice he claimed to have received from the barrister who had represented him in the criminal trial. The claimed advice was that the NCAT proceedings and outcome were not relevant to his employment with the Respondent. The Applicant was unable to furnish evidence of such advice despite called by Counsel for the Respondent to do so. Nor was he able to recall the names of two other solicitors he claimed to have spoken to regarding the matter and obtained similar advice to that of the barrister. I found the evidence of the Applicant on this point unconvincing and as such I do not accept it.

[143] I am satisfied that the more likely explanation for the Applicant’s non-disclosure of the NCAT proceedings during his recruitment process with the Respondent is that he quite reasonably calculated that disclosure of the NCAT proceedings during his recruitment phase would damage his prospects of securing employment with the Respondent. The Applicant’s denial of this concern or motivation was also unconvincing and simply not credible.

[144] While the Applicant may have withheld information regarding the NCAT proceedings during his recruitment process for self-serving purposes, that does not necessarily lead to a conclusion that he was dishonest as contended by the Respondent.

[145] It is clear that at the time of his job interview with the Respondent on 19 November 2015, the NCAT proceedings had been underway since June 2015. The HCCC had filed its application on 9 June 2015; two volumes of material were served on the Applicant on 7 August 2015; the Applicant applied to have the proceedings terminated on 9 October 2015 and filed submissions and materials in support of that application; and the original dates for the hearing of the substantive HCCC application had been set down for November 2015 and were subsequently vacated to deal with the application for termination of the proceedings. That application for the termination of the proceedings was due to be heard by NCAT on 27 November 2015.

[146] All of the above-referred events must clearly have been at the forefront of the Applicant’s mind at the time of his job interview with the Respondent on 19 November 2015. I found the Applicant to be dissembling in his evidence on his claimed knowledge of the timeline of the NCAT proceedings relative to the recruitment process. When pressed, the Applicant ultimately conceded that all of the above-described events were within his knowledge at the time of his formal interview on 19 November 2015 and with the added information of the NCAT Decision No.1 handed down on 27 November 2015, were in his knowledge at the time of his receipt of his offer of employment from the Respondent on 23 December 2015.

[147] While the Applicant may be rightly criticised for a lack of general candour during his formal interview, I am not satisfied that that in itself constitutes dishonesty as contended by the Respondent. There are however, specific responses that were provided by the Applicant during the interview regarding his osteopath skills and career change that do need to be considered.

[148] While the Applicant during his evidence questioned some aspects of the record of his formal interview of 19 November 2015 (see paragraph [35] above), I found that lack of recollection unconvincing. I am satisfied that in response to questions regarding skills he possessed, he identified osteopath skills as relevant to his application to become a firefighter. I am also satisfied that that he identified “to walk away from osteopath” as an important goal he had set for himself.

[149] The above-referred responses were provided during an interview conducted 8 days prior to a hearing related to an application by the HCCC for his de-registration as an osteopath. I have already found that the NCAT proceedings would likely have been at the forefront of his mind at the time of his job interview with the Respondent and in these circumstances I find that his responses to these questions were disingenuous.

[150] I am satisfied that the Applicant’s conduct during his interview, in citing his walking away from osteopathy as an important goal that was achieved and identifying osteopath skills as relevant to his employment as a firefighter while deliberately withholding information of his looming osteopath de-registration proceedings, was dishonest.

Was the Applicant dishonest during his employment?

[151] The NCAT Decision No. 2 was issued on 17 March 2016 and prohibits the Applicant from providing any “health services” until such time as a reinstatement order is made. As already stated above, the Applicant did not bring the NCAT Decisions No. 1 or No. 2 to the attention of the Respondent.

[152] The failure of the Applicant to advise the Respondent of the NCAT Decision No. 2 is raised by the Respondent as evidence of dishonesty and a matter going to the personal integrity of the Applicant and whether the Respondent can have the necessary level of trust and confidence in the Applicant. Further, that the NCAT decision impacts on the ability of the Applicant to perform EMR duties.

[153] It also raises a particular issue, in my view, that whether the Applicant in not raising the NCAT Decision No. 2 with the Respondent had failed to disclose a relevant matter that bore upon the Applicant’s capacity to perform the tasks for which he had been employed, specifically the EMR duties.

[154] The Applicant’s answer to the Respondent’s submissions regarding the effect of the NCAT Decision No.2 on his capacity to undertake EMER duties is essentially threefold. Firstly, clause 87.2 of the Agreement allows firefighters to withdraw from performing EMR duties. Secondly, the NCAT prohibition on “health services” does not operate generally to prevent the Applicant providing “health services” in Victoria. Finally, “health services” are not defined to specifically include first aid and as in the case of ambulance services which are included in the definition of “health services” in the Health Care Complaints Act 1993 (NSW), the Applicant contends that performance of first aid is ancillary to the delivery of the service, be that the transport of patients in the case of an ambulance service or firefighting.

[155] I accept the evidence of the Respondent’s witnesses that performance of EMR is a core function of firefighter duties and that the possession of the skills and capacity to perform those duties is an essential element of a Respondent firefighter’s employment. The core requirement of EMR is also made clear in the Applicant’s letter of employment. 136 I also accept that under clause 87.2 of the Agreement that there are circumstances in which a firefighter “may exercise a choice not to pursue the role”.

[156] The Respondent’s witnesses gave evidence as to the circumstances in which firefighters could withdraw from performing EMR, that evidence being challenged by the Applicant. The witnesses for the Respondent were not involved in the negotiation of the Agreement and as such were unable to shed light on the context or surrounding circumstances going to the proper construction of that clause. Consequently I accord no weight to that evidence.

[157] Wilson C however considered the meaning of clause 87.2 at some length in his decision 137 and states as follows:

[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.” 

[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,  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.

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.” 

[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?” 

[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.  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. 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 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.” 138

[158] I respectfully agree with Wilson C’s analysis. Clause 87.2 would not in my view allow the Applicant to simply withdraw from performing the EMR duties in the circumstances where the NCAT Decision No. 2 acted to prevent him from performing those duties. Nor would it enable the Applicant to unilaterally withdraw for reasons other than where he was able to demonstrate on reasonable grounds and evidence of potential harm to himself or his colleagues were he to perform EMR duties.

[159] I am consequently satisfied that in the present matter the Applicant was required to undertake EMR duties as a core function of his employment as a firefighter and that he was not entitled to unilaterally withdraw from performing those duties for reasons other than provided for in clause 87.2. Further, the NCAT decision, to the extent that it was likely to impact on the Applicant’s ability to perform those duties was a relevant matter that the Respondent ought to have been made aware of.

[160] I will now deal with whether the Applicant was prevented from performing EMR duties as a “health service” by reason of the NCAT Decision No. 2 prohibition. Wilson C found that the NCAT Decision No. 2 prohibition on “health services” operated to prevent the Applicant from performing EMR duties 139, which the Applicant contends is incorrect.

[161] The Applicant contends for the reasons summarised above at paragraphs [47]-[48] that the NCAT Decision No. 2 does not operate in Victoria to prevent the Applicant generally from providing “health services” and by extension EMR. The apparent effect of the Applicant’s submission is that he is able to provide “health services” generally in Victoria providing there is a not a connection with NSW. Consequently, according to the Applicant, the Respondent is unable to rely on the claimed inability of the Applicant to perform EMR as a basis for the termination of his employment.

[162] Further, the Applicant contends that the performance of EMR is not in any case a “health service” and as such is not subject to the prohibition. This submission is based on the Applicant’s contention that the performance of EMR is ancillary to the performance of firefighting duties, just as emergency medical treatment by a paramedic is ancillary to “ambulance services.” I find this logic advanced by the Applicant to be unsatisfactory.

[163] The narrow definition of “ambulance services” advanced by the Applicant as analogous to that of the EMR requirements of a firefighter is unconvincing. To suggest that a prohibition on an individual providing “health services” would act to prevent their engagement in the provision of the transport element of an ambulance service but leave them free to undertake urgent medical response treatment is counter intuitive and in my view has no merit.

[164] Ultimately however, it is unnecessary for me to determine whether the NCAT Decision No. 2 prohibition on the Applicant’s performance of “health services” does or does not prevent the Applicant from performing EMR duties. That is because the more fundamental question is whether the Applicant’s failure to disclose a matter that was relevant to his capacity to perform his duties at the time he became aware of the NCAT Decision No. 2 on 17 March 2016 constituted dishonesty.

[165] I have already found that the failure of the Applicant to disclose the NCAT proceedings during the course of his recruitment, while justifying criticism, did not constitute dishonesty. Importantly however, prior to the commencement of his employment with the Respondent, no decision had yet been made by NCAT going to the Applicant’s capacity to undertake his duties. That changed on 17 March 2016, at which point, it ought to have been clear to the Applicant that the NCAT Decision No. 2 at the very least cast doubt on his ability to perform EMR which I have found already was a core function of his duties.

[166] I am not persuaded that the Applicant withheld the NCAT Decision No. 2 on the basis of his understanding of the extraterritorial operation of the NSW National Law or the finely argued point on whether EMR was or wasn’t ancillary to his firefighting duties. Nor am I persuaded that his decision not to disclose was based on legal advice, for the reasons previously stated at paragraph [142]-[143]. I am satisfied that he withheld the NCAT Decision No. 2 from the Respondent for reasons of the impact it would have on his employment during his probationary period had he disclosed it.

[167] The Applicant in my view had an obligation to bring the NCAT Decision No. 2 to the attention of the Respondent. The Respondent reasonably concluded that the prohibition on “health services” impacted on the Applicant’s ability to perform EMR duties. At the very least the NCAT Decision No. 2 cast doubt on the Applicant’s ability to perform EMR duties. I am satisfied that the Applicant’s decision to not disclose the information was conscious and consistent with the approach adopted by him during the recruitment process. The significant difference however, from the Applicant’s pre-employment conduct, is that the NCAT Decision No. 2 which potentially impacted on the Applicant’s ability to perform the full range of firefighter duties was rendered on 17 March 2016 after he had commenced employment.

[168] Even if I were to accept the Applicant’s evidence that he had obtained legal advice that dealt with the impact of the NCAT Decision No. 2 on his duties as a firefighter, that did not in my view relieve him of the obligation to disclose. That is because the nature of the findings and prohibitions ordered, whether ultimately legally operative in respect of the Applicant in Victoria or not, were matters that went directly to his capacity to perform the full range of duties for which he was employed.

[169] It was not the Applicant’s prerogative to determine whether the NCAT Decision No. 2 prohibition on “health services” allowed or prevented him from undertaking the EMR duties. I am satisfied that the Applicant’s failure to disclose the NCAT decision was in these circumstances a dishonest course of conduct engaged in by the Applicant to avoid impacting on his employment with the Respondent.

Was the Applicant dishonest during the investigation?

[170] A key allegation levelled by the Respondent against the Applicant in these proceedings is that through both the course of the Respondent’s investigation in 2016 and in the present proceedings, the Applicant had offered a misleading and deceptive account of events to create a false impression that the Applicant was unaware of the NCAT proceedings during the recruitment process and at the time of his offer of employment.

[171] The Respondent contends that statements made by the Applicant in both his 8 May 2016 response to his proposed dismissal and in his witness statement in the present proceedings, provide an inaccurate and misleading picture of events and timeline relating to the NCAT proceedings.

[172] Statements by the Applicant that the HCCC application was filed in “late 2015”; his failure to accurately detail the timeline of NCAT events; and his omission of key facts from his response to the Respondent of 8 May 2016 appear contrived and designed to mislead the Respondent as to the true circumstances of NCAT events and the his knowledge of those events at the time of his formal interview and subsequent job offer. I note however that the Applicant in his 8 May 2016 response specifically referenced the NCAT Decisions No. 1 and No. 2.

[173] For its part, the Respondent contends that its officers were at the time of the Applicant’s dismissal, unaware of the timeline of NCAT proceedings relative to the recruitment process undertaken by the Applicant. Specifically, Messrs Leach and Higgins both gave evidence that they were not aware at any time prior to the decision to terminate the Applicant, of the various NCAT processes that had had occurred or were underway prior to or at the time of the Applicant’s formal job interview on 27 November 2015 or employment offer on 23 December 2015.

[174] The claim by Messrs Higgins and Leach regarding their lack of knowledge of the NCAT events and timeline relative to the Applicant’s recruitment bespeaks a failure on their parts to carefully read the NCAT decisions that were in their possession at the time of the Applicant’s dismissal. Both claimed to have either read the decision, “a number of times” in the case or Mr Leach and “carefully” and “thoroughly” in Mr Higgins’ case. A repeated or careful and thorough reading of the NCAT Decisions No. 1 and No. 2 would have revealed the relevant timeline of events.

[175] The fact that the Applicant specifically referenced the NCAT decisions in his response to the Respondent on the 8 May 2016 undermines the contention of the Respondent that the Applicant had failed to disclose relevant facts during the investigation. The relevant facts as to the NCAT timeline and events were clearly set out in the NCAT decisions.

[176] The evidence of Messrs Leach and Higgins as to their lack of knowledge of the NCAT timeline and events relative to the Applicant’s recruitment, could only be accepted on the basis that they both failed to properly read and understand the NCAT decisions in their possession prior to the Applicant’s dismissal and rather, relied on the events summarised by the Applicant under the Background section of his 8 May 2016 response.

[177] The evidence of Messrs Leach and Higgins as to both having read the NCAT decision yet having failed to “join the dots” regarding the timeline of NCAT events is unsatisfactory. It may be explained by the fact that at the time of the dismissal the Applicant’s alleged dishonesty during the investigation process was not an issue on which the Respondent focussed on or relied upon in terminating the Applicant’s employment. However, it undermines the point now made by the Respondent regarding the Applicant’s alleged dishonesty during the investigation.

[178] I now return to the Applicant’s 8 May 2016 response to the Respondent and to his evidence in the present proceedings regarding his knowledge of NCAT events and their timing relative to his recruitment and employment by the Respondent. Notwithstanding his inclusion of specific references to the NCAT decisions in his response of 8 May 2016 and also those decisions being in evidence in these proceedings, the Applicant has persisted with a description or summary of events that is at odds with the actual timeline of NCAT events or he has simply omitted reference to particular events.

[179] The Applicant’s statements that he had not sought to mislead and his apologies proffered to the Commission if he had misled were unconvincing having regard to the nature of the evidence he gave during cross-examination and the admissions he ultimately made. The following evidence of the Applicant during cross-examination is illustrative:

MS NELSON: “In your response to the MFB, which you had before, I took you to the initial response document.  Do you remember – have you got that, your 8 May document?  I was taking you to the transcript references in there.  I think you've got your hand on it, Mr Duggan?

MR DUGGAN: This one?  This one?

MS NELSON: That one I think, yes.  If you just close it to the front, you'll see it starts with that cover sheet, contents of submission.  That's correct?

MR DUGGAN: Yes.

MS NELSON: Then there's a background document?

MR DUGGAN: Yes.

MS NELSON: That document says, doesn't it, Mr Duggan, that you were informed in late 2015 about the NCAT proceedings at paragraph 14?

MR DUGGAN: Correct.

MS NELSON: That's not true, is it, Mr Duggan?

MR DUGGAN: I don't know if it's not true.  Is it not true?

MS NELSON: This is a document you prepared to provide to the MFB, you represented was truthful.  Is it correct, Mr Duggan, that you were informed in late 2015 about the Health Care Complaints Commission?

MR DUGGAN: I assume you're going to tell me that it's not.  I don't know whether that's – if it's the case that it's not.  You do.

MS NELSON: Did you write this document, Mr Duggan?

MR DUGGAN: I did it with the assistance of Mr Langmead.

MS NELSON: In fact, the Health Care Complaints Commission lodged a complaint with NCAT on 9 June 2015, didn't it, Mr Duggan?

MR DUGGAN: If you say so.

MS NELSON: I take you to the decision that I've just given you, the one that's been marked R4, Mr Duggan.  It sets out the history.  You'll see paragraph 1, under the heading background?

MR DUGGAN: Yes.

MS NELSON: That you responded to a complaint of unsatisfactory professional conduct and professional misconduct, filed on 9 June 2015.  Does that refresh your memory that that was the time it was made against you, Mr Duggan?

MS DUGGAN: Yes.

MS NELSON: Not in late 2015?

MR DUGGAN: Correct.

MS NELSON: Can you turn to paragraph 6 of that decision?

MR DUGGAN: Yes.

MS NELSON: You were served two volumes of evidence?

MR DUGGAN: Yes.

MS NELSON: On 7 August 2015?

MR DUGGAN: Correct.

MS NELSON: Shortly after 7 August it was listed for a five-day hearing in the week of 23 November, Mr Duggan.  That's paragraph 7?

MR DUGGAN: Correct.

MS NELSON: You then appeared at a directions hearing on 2 October 2015 and you sought leave to make an application to terminate the enquiry?

MR DUGGAN: Correct.

MS NELSON: There was directions given to file that application by 9 October 2015.  You did that?

MR DUGGAN: Yes.

MS NELSON: There was a reply date for the Health Care Complaints Commission of 30 October.  Then a hearing date of 27 November 2015?

MR DUGGAN: Yes.

MS NELSON: On 23 October you filed written submissions in support of your application?

MR DUGGAN: Yes.

MS NELSON: It includes, you'll see at paragraph 8, a sworn affidavit dated 26 August 2015?

MR DUGGAN: Yes.

MS NELSON: That application was opposed?

MR DUGGAN: Yes.

MS NELSON: Then the tribunal held a hearing on 27 November 2015, paragraph 11?

MR DUGGAN: Correct.

MS NELSON: You knew that the matter was listed for a five-day hearing, shortly after August 2015, didn't you, Mr Duggan, when you were served the materials?

MR DUGGAN: No, I don't believe so.  I don't – I thought it was later than that.

MS NELSON: It was listed for a hearing before you made your application on 2 October 2015, wasn't it?

MR DUGGAN: Yes.

MS NELSON: So you agree with me that you knew that you were facing a five-day hearing at NCAT, before 2 October 2015?

MR DUGGAN: No, I think I found – learnt of the dates – I was – it was after I'd been given my job offer with the MFB, and I think that it was later than that.  So I'd been given a job offer, I was told – because I had the letter of offer, with setting out the dates of the recruit course, and I went to …..….” 140

[180] The Applicant’s obfuscation during cross-examination raises issues regarding his credit and leads me to distrust his assurances that it was not his intention to mislead the Respondent or the Commission. The alternate potential explanation is that of confusion on the part of the Applicant over dates and events that occurred over 2 years ago. However, given the history of this matter it is difficult to reconcile such confusion with the assiduous manner with which both the Applicant and Respondent have pressed their respective positions through multiple proceedings conducted before the Commission.

[181] The Applicant’s argument that it is inherently unlikely that he would have attempted to mislead when the NCAT decisions were in the Respondent’s possession does, however, hold some force. It is somewhat difficult to reconcile the Applicant’s persistence in representing an inaccurate and misleading version of events when contrasted with the facts in the NCAT decisions which were available to both the Respondent at the time of the Applicant’s dismissal and the Commission in these proceedings.

[182] It may be that the Applicant, like the Respondent, possesses a lack of attention to detail and failed to familiarise himself with the relevant detail of the NCAT decisions. Either that or his persistence in presenting an inaccurate version of events was at best a careless summary as opposed to deliberately misleading.

[183] I have considered the possible explanations for the Applicant’s inaccurate and misleading account of events to both the Respondent in his 8 May 2016 response and to the Commission in these proceedings. I prefer the explanation that he set about to mislead and deceive the Respondent in his 8 May 2016 response, notwithstanding the provision of references for the NCAT decisions in that response to the Respondent. I reach this finding based on my observations of the Applicant during his evidence. I did not find the Applicant to be a credible witness, rather his evidence had the character of being crafted to best support his case and when challenged he simply changed his evidence.

[184] On the basis of the above, I am satisfied that the Applicant in his response to the Respondent on 8 May 2016 and in the evidence provided to the Commission in this matter, sought to create and persist with a version of events that was inaccurate and misleading. In my view, the Applicant sought to deceive the Respondent as to his knowledge of the NCAT proceedings, the timing of such knowledge and his response to those proceedings during the course of the Respondent’s investigation. I am satisfied that this behaviour of the Applicant was dishonest.

[185] At this point, it is relevant that I make some further comments on the response the Applicant provided to the Respondent on 8 May 2016. The response sought to address issues raised in the stand-down letter of 5 May 2016 in which the Respondent indicated a preliminary view that the Applicant should be dismissed on the basis of the NCAT Decision No. 2 findings.

[186] The Applicant in his 8 May 2016 response took issue and clearly disagreed with the conclusions and findings reached by NCAT. He raised concerns as to the process undertaken by NCAT and claimed that it had overlooked matters and failed to adequately consider particular evidence from the criminal trial in his favour. He maintained in his response that he had not committed any “wrongdoing or impropriety”. 141

[187] It is clear that the Applicant was fighting to retain his job at the time of his 8 May 2016 response and he attempted to present arguments as to why he should not be dismissed. Unsurprisingly, he presented the arguments to the Respondent that he claimed he would have put to NCAT had he appeared at the proceedings. Simply put, those submissions were not accepted by the Respondent as it gave greater weight and credit to the findings in the NCAT Decision No. 2.

[188] It is evident from observing the Applicant in the present matter that he has not fully reconciled with the findings and outcome of the NCAT Decisions No. 2 but has been forced to accept it. This is evident from his cross-examination, an extract of which was provided at paragraph [34] above. In the circumstances, he has had no choice but to accept the NCAT decision and findings, albeit with a degree of seeming reluctance. The Applicant’s reluctant acceptance is utterly unremarkable. The fact that the Applicant may have challenged the NCAT decision in his 8 May 2016 response and in doing so presented his particular perspective on the NCAT decision and is now forced to accept the outcome, does not in my view disclose dishonesty on his part.

Conclusion on valid reason

[189] I am not satisfied that the NCAT findings in themselves and the conclusions that the Respondent reached that the Applicant was not a fit and proper person based on that decision establish a valid reason for his dismissal. Nor am I satisfied that the Applicant was dishonest by not volunteering information beyond the affirmative responses he provided to the arrest and charge questions during the recruitment process.

[190] I am however satisfied that the Applicant engaged in dishonest conduct during the recruitment, employment and investigation process. That dishonesty of which I have made findings above are that he:

(i) disingenuously responded to questions during his formal job interview on 19 November 2015 in which he held out his osteopath skills as relevant to his application for a firefighter role and identified his having achieved a goal in walking away from osteopathy while failing to disclose the NCAT proceedings dealing with the HCCC application for his osteopath de-registration;

(ii) failed to disclose the NCAT Decision No. 2 of 17 March 2016 in circumstances where an order in that decision prohibited him from providing “health services”, such prohibition being directly relevant to his capacity to perform the full range of duties of a firefighter with the Respondent, specifically EMR; and

(iii) provided a false and misleading version of events to the Respondent during its investigation and to the Commission in his evidence as to the NCAT proceedings, the timeline of NCAT proceeding events and to his knowledge of those events relative to his recruitment by the Respondent.

[191] The dishonesty engaged in by the Applicant was not a trivial or one-off event but can be seen as a pattern of dishonest conduct motivated by the Applicant’s concern that honest and candid disclosure would have threatened his employment with the Respondent. In the circumstances, I am satisfied that the Applicant’s dishonesty constitutes misconduct and establishes a valid reason for his dismissal.

Notification of the valid reason - s.38 7(b)

[192] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,142 in explicit terms143 and in plain and clear terms.144 In Crozier v Palazzo Corporation Pty Ltd145 the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[193] The Applicant was advised of the basis upon which the Respondent was considering the termination of his employment in correspondence dated 5 May 2016. The letter of termination dated 24 May 2016 confirmed the reasons for the Applicant’s dismissal, although the termination was stayed pending the outcome of the dispute notified to the Commission by the Respondent on 24 May 2016. Confirmation of the termination of the Applicant’s employment was provided to the Applicant on 10 November 2016 following the Full Bench decision dealing with the dispute.

[194] The Applicant was not notified at the time of his dismissal that the reason for his dismissal included that of his dishonesty during his recruitment, employment and investigation process, which I have found constitutes a valid reason for his dismissal. On that basis, it cannot be said that the Applicant was notified of the valid reason prior to his dismissal.

[195] I am not satisfied that the Applicant was notified of the valid reason for his dismissal in plain and clear terms prior to the decision being made to terminate his employment. This weighs against a finding that the dismissal was not harsh, unjust or unreasonable.

Opportunity to respond to any reason related to capacity or conduct - s.387(c)

[196] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.146

[197] On 5 May 2016, the Applicant received a letter from the Respondent detailing the basis on which the Respondent had formed a preliminary view that it was not appropriate for the Applicant’s employment with the Respondent to continue. This correspondence followed a meeting conducted with the Applicant on 3 May 2016. The Applicant was provided with an opportunity to provide a written response by 5.00pm on 8 May 2016.

[198] On 8 May 2016, the Applicant provided a written response.

[199] I am satisfied that the Applicant was given an opportunity to respond to the reasons relied on by the Respondent for his dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[200] The Applicant met with the Respondent on 3 May 2016 during which the NCAT decision and its implications were discussed with the Applicant. The Applicant was accompanied by UFU officials in that meeting.

[201] I am consequently satisfied that there was no unreasonable refusal by the Respondent to allow the Applicant to be accompanied by a support person. This factor is therefore a neutral consideration in my decision.

Warnings regarding unsatisfactory performance - s.387(e)

[202] The Applicant was not dismissed for performance shortcomings but because he was unfit to perform his role and so this factor is not relevant in my decision. This factor is therefore a neutral consideration in my decision.

Impact of the size of the Respondent on procedures followed - s.387(f)

[203] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 2,280 employees. There is no evidence before me that establishes that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor is therefore a neutral consideration in my decision.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[204] The evidence in this matter indicates that the Respondent had access to and did in fact utilise the services of dedicated human resources specialists employed by the Respondent. This factor is therefore a neutral consideration in my decision.

Other relevant matters - s.387(h)

[205] While the Applicant did not contend in its closing submissions that there were any other relevant issues a number of other matters were raised through the course of the proceedings which I will address.

Adverse Publicity

[206] The termination of the Applicant’s employment has regrettably attracted significant media interest. Evidence was put by the Applicant 147 and rebutted by the Respondent as to whether the Respondent’s decision was motivated at least in part by adverse publicity it (the Respondent) was likely to receive were the Applicant’s employment to continue148. On the limited evidence before me I am not satisfied that the adverse publicity was a motivation for the Applicant’s dismissal.

Decision of Wilson C in MFESB v Garth Duggan

[207] The Applicant contends that while Wilson C’s decision was overturned on appeal by a Full Bench, a core finding of Wilson C’s has not been overturned or disturbed. Specifically, that the Applicant’s conduct before and after commencing employment with the Respondent, “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”. 149

[208] Wilson C was dealing with a matter notified by the parties pursuant to clause 19 Dispute Resolution of the Agreement. He characterised the dispute as follows:

“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 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 process is resolved; and

3. Whether the decision to terminate the employee’s employment can therefore now be implemented by the MFB.” 150

[209] While Wilson C expressed views in relation to the Applicant’s conduct, it was in the context of the matter before him. I would say respectfully that Wilson C’s findings regarding the Applicant’s conduct are not determinative in my consideration of the matter before me.

Evidence of Mr Phillip Teehan

[210] It is unnecessary for me to make findings in relation to Mr Teehan’s evidence. It adds little to the NCAT decision which stands for itself and is unchallenged from an evidentiary viewpoint. The NCAT Decision No. 2 is accepted by the Applicant and no material or evidence has been adduced during the proceedings that discredits or undermines the NCAT findings.

[211] Having considered other relevant matters I am not satisfied on balance that these additional matters weigh either way in assessing whether the termination was harsh, unjust or unreasonable, therefore they are neutral considerations.

Conclusion

[212] Having considered each of the matters specified in s 387 of the Act, I am satisfied that there was a valid reason for the dismissal of the Applicant, that being the Applicant’s dishonest conduct during his recruitment, employment and the investigation conducted by the Respondent that led to his dismissal. I have weighed the other factors and concluded that they are not sufficient to displace the weight of the valid reason I have found such that they would lead to a finding that the termination was otherwise unfair. I am consequently satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable and consequently he was not unfairly dismissed.

[213] The application is dismissed. An Order will be issued in conjunction with this decision to that effect.


DEPUTY PRESIDENT

Appearances:

T Langmead for the Applicant.

R Nelson for the Respondent.

Hearing details:

2018.

Melbourne.

March 14, 15.

Printed by authority of the Commonwealth Government Printer

< PR620103>

 1   Exhibit R4, NCAT Decision (No.1) 27 November 2015.

 2   Exhibit R11, Witness Statement of Mr Gregory Leach, dated 26 February 2018, Annexure GL4.

 3   Exhibit R5.

 4   Exhibit R11 at annexure GL3.

 5   Ibid at annexure GL1.

 6   Ibid R11 at Annexure GL5, Health Care Complaints Commission v Duggan (No 2) [2016] NSWCATOD 30.

 7   Ibid at annexure GL9.

 8   Ibid at annexure GL10.

 9   Ibid at annexure GL12.

 10   Ibid at annexure GL14.

 11   [2016] FWC 5028.

 12   [2016] FWCFB 8120.

 13   Ibid at paragraph [64].

 14   [2017] FWC 1197.

 15   [2017] FWCFB 4878.

 16   Exhibit A1, Witness Statement of Mr. Garth Duggan, dated 5 February 2018 at paragraph [1]-[2].

 17   Ibid at paragraph 4.

 18   Transcript at PN204-PN212.

 19   Exhibit A1 at paragraph 5.

 20   Ibid at paragraph 7.

 21   Transcript at PN566.

 22   Transcript at PN583.

 23   Transcript at PN566.

 24   Transcript at PN583-584, PN836-PN838 and PN944.

 25   Transcript at PN524-PN525.

 26   Transcript at PN532-PN533.

 27   Transcript at PN547.

 28   Transcript at PN554.

 29   Transcript at PN551-PN567 and PN579-PN589.

 30   Transcript at PN840-PN843.

 31   Transcript at PN873-PN907.

 32   Transcript at PN923 and PN934-PN945.

 33   Transcript at PN280-PN286.

 34   Exhibit R6.

 35   Transcript at PN664-PN665 and PN784.

 36   Transcript at PN666.

 37   ExhibitR12.

 38   Transcript at PN771-PN780.

 39   Transcript at PN744-PN749.

 40   [2016] FWC 5028 at paragraph [112].

 41   Ibid at paragraph [87].

 42   Exhibit R11, Statement of Gregory James Leach, dated 26 February 2010 at annexure GL5 at paragraph 4.

 43   Ibid at paragraph 7.

 44   Ibid at paragraphs 9-10 and Annexure GL-3.

 45   Ibid at paragraph 11.

 46   Ibid at annexure GL-4.

 47   Ibid at paragraph 11.

 48   Transcript at PN1432.

 49   Transcript at PN1436.

 50   Transcript at PN1437.

 51   Transcript at PN1439.

 52   Exhibit R11 at paragraph 14.

 53   Ibid at paragraph 16.

 54   Transcript at PN1472.

 55   Exhibit R11 at paragraph 17-18.

 56   Transcript at PN1442.

 57   Exhibit R11 at paragraph 19-20.

 58   Transcript at PN1445.

 59   Transcript at PN1445-PN1446.

 60   Transcript at PN1447.

 61   Transcript at PN1672.

 62   Exhibit R11 at paragraph 23.

 63   Ibid at Annexure GL-1.

64 Ibid at paragraph 23.

 65   Transcript at PN1641.

 66   Exhibit R 11 at paragraph 21.

 67   Transcript at PN1641-PN1644.

 68   Transcript at PN1665.

 69   Exhibit R11 at paragraph 24-25.

 70   Ibid at paragraph 27.

 71   Transcript at PN1595 – PN1614.

 72   Transcript at PN1456.

 73   Transcript at PN1457.

 74   Transcript at PN1483.

 75   Transcript at PN1476-PN1480.

 76   Transcript at PN1485-PN1486.

 77   Exhibit R11 at Annexure GL-9.

 78   Ibid at paragraph 36.

 79   Ibid at paragraph 38.

80 Ibid at paragraph 38.

 81   Transcript at PN1529.

 82   Transcript at PN1522.

 83   Ibid at paragraph 44.

 84   Ibid at paragraph 47.

 85   Ibid at paragraph 49.

 86   Ibid at paragraph 50.

 87   Ibid at paragraph 51.

 88   Transcript at PN1506.

 89   Transcript at PN1508-PN1509.

 90   Transcript at PN1574.

 91   Transcript at PN1584.

 92   Transcript at PN1590.

 93   Exhibit R12.

 94   Transcript at PN1724 – PN1748.

 95   Transcript at PN1771-PN1783.

 96   Exhibit R13, Statement of James Patrick Higgins, dated 26 February 2018 at paragraph 1.

 97   Ibid at paragraphs 4-9.

 98   Ibid at paragraphs 11-12.

 99   Ibid at paragraphs 14-17.

 100   Ibid at paragraphs 19.

 101   Ibid at paragraphs 21.

 102   Ibid at paragraphs 23.

 103   Ibid at paragraphs 22.

 104   Ibid at paragraphs 25.

 105   Ibid at paragraphs 26-27.

 106   Ibid at paragraphs 29-34.

 107   Ibid at paragraphs 35-37.

 108   Ibid at paragraphs 40-41.

 109   Transcript at PN2033 – PN2047.

 110   Transcript at PN2049 – PN2050.

 111   Transcript at PN2051–PN2055.

 112   Transcript at PN1849 – PN1854.

 113   Transcript at PN1951–PN1954.

 114   ExhibitR7, Witness Statement of Mr. Trent Curtin, dated 26 February 2018 at paragraph 5.

 115   Ibid at paragraphs 26–29.

 116   Transcript at PN1156.

 117   Exhibit R7 at paragraph 30 and transcript PN1158.

 118   Transcript at PN1159–PN1160.

 119   Exhibit R7 at paragraphs 31 – 32.

 120   Transcript at PN1144–PN1149.

 121   Transcript at PN1150–PN1151.

 122   Exhibit R8, Witness Statement of Mr. Robert Purcell, dated 26 February 2018 at paragraph 5.

 123   Ibid at paragraphs 6 - 7.

 124   Ibid at paragraphs 11-12.

 125   Exhibit R10, Expert Report of Associate Professor Teehan, dated 15 February 2018.

 126   Transcript at PN96, PN100 and PN1010.

127 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465.

128 Sayer v Melsteel [2011] FWAFB 7498.

129 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378.

130 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

131 Ibid.

132 Edwards v Giudice (1999) 94 FCR 561 [6]–[7].

133 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

134 King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 [24].

 135   Exhibit R5.

 136   Exhibit R11 at annexure GL3.

 137   [2016] FWC 5028.

 138   Ibid at paragraphs [104]–[112].

 139   Ibid at paragraph [102].

 140   Transcript at PN544 – PN568.

 141   Exhibit R1 at paragraph 29.

142 Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41].

143 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

144 Previsic v Australian Quarantine Inspection Services, Print Q3730.

145 (2000) 98 IR 137.

146 RMIT v Asher (2010) 194 IR 1, 14-15.

 147   Exhibit A1 at paragraph 10.

 148   Exhibit R11 at paragraph 50.

 149   [2016] FWC 5028 at paragraph [87].

 150   Ibid at paragraph [43].