Industrial Relations Commission of New South Wales CITATION: Vella v. New South Wales Fire Brigades [2005] NSWIRComm 1095 APPLICANT New South Wales Fire Brigade Employees' Union PARTIES: RESPONDENT New South Wales Fire Brigades FILE NUMBER(S): 677 of 2005 CORAM: Connor C termination of employment - firefighter - failure to meet training requirements within required time - reinstatement conditional upon compliance with training requirements CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Hollingsworth v. Commissioner of Police (No 2) (1999) 88 IR 282 Holy Family School Case (1975) AR 991 CASES CITED: Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 Oswald v. New South Wales Police Service (1999) 90 IR 42 HEARING DATES: 06/22/2005; 06/23/2005 DATE OF JUDGMENT: 07/28/2005 APPLICANT Jim Nolan LEGAL REPRESENTATIVES: RESPONDENT Elaine Brus DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 28 July, 2005 Matter No IRC 677 of 2005 Paul Anthony Vella and the New South Wales Fire Brigades Application by the New South Wales Fire Brigade Employees' Union under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1095 Preliminary 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, the New South Wales Fire Brigade Employees' Union has lodged an application on behalf of its member, Mr Paul Vella, whose services as a firefighter [8058] with the New South Wales Fire Brigades was terminated effective on Thursday, 20 January, 2005. At that time he had five years of employment with the Fire Brigades. The termination of Mr Vella's services arose through his failure to reach an appropriate qualification level as a firefighter. In its Part 6 application the FBEU has nevertheless claimed that the termination of Mr Vella's services was unfair and it has sought his reinstatement or, alternatively, monetary compensation in lieu thereof. 2 The matter was allocated by Registry staff and set down for a conciliation and directions hearing on Friday, 4 March, 2005. It was vacated at the request of the FBEU and listed for mention on Thursday, 24 March, 2005. Conciliation failed to settle the matter. I set it down for arbitration in a hearing on Wednesday, 22 June, 2005 and Thursday, 23 June, 2005. In the hearing Mr Nolan represented Mr Vella and the FBEU and Ms Brus represented the Fire Brigades. Annexed to this decision is a list of the witnesses called to give evidence in the hearing by either Mr Nolan or Ms Brus. 3 The FBEU claim on behalf of Mr Vella in this hearing centres around the provisions of Clause 13, Progression and Promotion Provisions, of the Crown Employees (New South Wales Fire Brigades Firefighting Staff) Award which covered Mr Vella's employment. In 1996 the Fire Brigades introduced a new system of training, replacing the in-house training for firefighters which had previously existed. The training arrangements are now contained in Clause 13 which prescribes the conditions for progression and promotion for firefighting staff, ie their dependence upon the Open Training Education Network [OTEN] which operates under the auspices of the Training Review Committee. In particular, Clause 13 provides as follows [13.2]: "...All employees shall be required to satisfy and maintain the competencies specified by the Commissioner on the advice of the Training Review Committee for the classification to which they are appointed..." And goes on to provide, relevantly, for promotion from a new recruit to a Level 1 firefighter [13.3]: "Recruit Firefighters shall be on probation until they have progressed to Firefighter Level 1, or for a period of six months, whichever is the lesser. Progression from Recruit Firefighter to Firefighter Level 1 shall be subject to the satisfactory completion of Certificate 2 (Firefighting Operations) undertaken by the New South Wales Fire Brigades Training College." And for further promotion from Level 1 to Level 2, Level 3, Level 4 or to a qualified firefighter, minimum periods of service are required [13.5] - one year for Level 2, two years for Level 3, three years for Level 4 and four years for appointment to a qualified firefighter - together, at each level, with the employee achieving the training modules as the required level of qualification [13.4], viz: "...subject at each classification to the satisfactory completion of the training and/or competencies specified by the Commissioner on the advice of the Training Review Committee for such progression..." 4 The progression through the grades to a qualified firefighter is an essential requirement for a firefighter and each employee will be obliged to progress through the grades to be a qualified firefighter by the four year period [13.6.1]: "Progression to Qualified Firefighter is a mandatory achievement required of all Firefighters. Failure to achieve progression to this classification within a reasonable time , will result in the employee being considered unsuitable for continued employment in the Department, and the employment of such an employee will be terminated accordingly. In such circumstances, the Department will advise the union that the services of the employee are to be terminated." 5 Whilst a firefighter may come under review during the four year period if he does not meet the training modules required for each level, the termination of his employment only becomes an option after the four years have elapsed and he has failed to reach the level of competency required of a qualified firefighter during that time. The only exception to the four year period is where the Fire Brigades accept an additional period of time as reasonable in all the circumstances. 6 What is meant by a "reasonable time" in that context is also described in Clause 13 [13.6.2] as: "...a period in excess of the minimum time required to achieve progression to the classification of Qualified Firefighter. The excess time to be allowed shall be determined by the Commissioner after taking into account all the circumstances of the case of the employee concerned..." The Employment 7 Mr Vella commenced employment with the Fire Brigades on Tuesday, 19 January, 1999. He worked at a range of fire stations - Botany, Concord, Ashfield, Revesby and Woollahra. He had not completed all of the modules required for progression to be a qualified firefighter at the time of the termination of his services. Mr Vella was eight months late over the twelve month period necessary to complete the modules required to progress to Level 1. He should have apparently completed all training modules for Level 2 by Sunday, 19 November, 2000 but did not reach that level until Wednesday, 25 July, 2001. He did not reach Level 3 until Friday, 11 October, 2002, eleven months late. He had not progressed beyond Level 3 at the point that his services were terminated. 8 Mr Vella was called to give evidence in the hearing by Mr Nolan and conceded that he had not been able to catch up from a slow start with the training programme. Mr Vella asserted in his evidence in this hearing that domestic problems - a breakdown in his relationship with his partner - and an injury he sustained at work when he wrenched the bonnet of a car open were the reasons for his failures in that respect. Mr Vella is now reconciled with his partner but he claims that the stress of the breakdown in the relationship he had with her had made it difficult for him to study for the modules. Mr Vella's injury had meant that he had been absent from work for five months - from Friday, 7 March, 2003 to Saturday, 30 August, 2003 and again when he aggravated his injury for a brief period three months later - from Tuesday, 30 December, 2003 to Monday, 5 January, 2004. 9 Actually, Mr Vella's workers compensation payments had been challenged by the insurer. When he returned from annual leave on Friday, 28 May, 2004 he was informed that a videotape that the Fire Brigades had obtained from a private investigator employed by the insurer contained footage of him performing panel-beating work. Mr Vella asserts that, in fact, the person who is shown in the videotape is not him at all and Mr David Baker, his station officer at the time, apparently has confirmed that fact. Mr Vella is proceeding to seek the restoration of his workers compensation entitlements but that matter remains unresolved at the present time. But it would appear that this is simply a case of mistaken identity on the part of the private investigator called in by the workers compensation insurer. 10 On Wednesday, 28 May, 2003 a letter was forwarded to Mr Vella by the Fire Brigades outlining the obligations on him to complete the necessary training modules to progress to a permanent firefighter position. That letter concluded: "...You are reminded that progression to the rank of qualified firefighter is mandatory and that failure to achieve progression to this classification within the specified time will result in the termination of your employment as a permanent firefighter..." Mr Vella wrote in reply to the Fire Brigades on Friday, 7 November, 2003 making an application for a six month extension of time to allow him to complete his modules and on Friday, 21 November, 2003 Mr Michael Guymer, then acting deputy zone commander, wrote a memorandum in support of that extension of time. There were eight modules left for him to complete at that time. He completed four modules during the extension of time. 11 In the middle of 2003 Mr Vella had been transferred to the Revesby fire station. If the purpose of the transfer was to assist Mr Vella in overcoming his problems in meeting the necessary training modules, it did not succeed. Apparently, there were no other firefighters being progressed through the OTEN to act as some peer support for him and the station officer who was to supervise him at that fire station had his own problems which led to his resignation. Mr Vella had apparently had a disagreement with that station officer. Also on occasions Mr Vella's training regime was interrupted by duties with bushfires. Mr Vella was transferred again to Woollahra fire station where he remained until his services were terminated. 12 Mr Vella claims that his workplace assessor, was not able to fit him into his schedule for assistance. Mr Vella claimed in the witness statement which formed the basis of his evidence in the hearing that: "...in an effort to continue with my modules I requested time to do the associated assessments. However, the workplace assessor was unable to fit me on his schedule. This request was made on Wednesday, 18 August, 2004. I made a second request for time to complete the assessment. However, the workplace assessor was still unable to schedule me in. The second request was made on Friday, 3 September, 2004..." 13 Ms Brus called a number of witnesses in the hearing for cross-examination - Mr Russell Lysle, a regional assessor (now retired), Mr Mark Ruscoe, a senior firefighter and regional assessor, and Mr Robert Russell, the station officer at Woollahra fire station, in particular - whose evidence suggests to me that the Fire Brigade had offered assistance to Mr Vella on numerous occasions to guide him through the modules. Mr Vella claimed, for instance, that Mr Vella had responded to the numerous offers for assistance with his training regime with words to the following effect: "No, I'll be right. I can do it myself." Mr Lysle provided a summary document as part of his evidence outlining the history of his attempts to assist Mr Vella. I am satisfied that attempts made on numerous occasions by Fire Brigade personnel to assist Mr Vella often went begging. 14 However, a common thread that runs through the evidence of the station officers who have supervised Mr Vella is that he performs satisfactorily as a firefighter, albeit that he has not necessarily applied himself as well to meeting the essential qualifications for his position. For instance, on Wednesday, 25 July, 2001 when Mr Vella was attached to the Ashfield fire station (at Level 1), his station officer wrote a memorandum to the Fire Brigades to the following effect: "...Firefighter Vella has been under my supervision since Sunday, 1 July, 2001. During that time I have found him to be attentive and he shows a keen interest in all Brigade activities, especially with regard to drills and school visits. It has been brought to my attention that firefighter Vella was behind in his OTEN studies. The reason for this was due to family difficulties at home. This situation has been rectified and firefighter Vella is now on top of his studies. I have no hesitation in recommending firefighter Vella for promotion to Level 2..." 15 Later Mr Vella came under the supervision of Mr David Baker, another station officer appointed to the Ashfield fire station. Mr Nolan called Mr Baker to give evidence in support of Mr Vella. In a written statement which formed the basis of his evidence in the hearing Mr Baker stated that he regarded Mr Vella as "...a hard working and conscientious firefighter who fitted in at the station and was reliable on the fire ground...". Mr Baker supported Mr Vella's assertion that urgent bushfire had disputed Mr Vella's training. Mr Baker reported in his written statement that: "...during the time that Mr Vella was stationed at Ashfield we were involved in a major bushfire emergency. The crew at Ashfield were often away from the station making study difficult for all at the time..." 16 It was Mr Baker who wrote the memorandum on Friday, 1 November, 2002 confirming Mr Vella's completion of the training modules to take him to Level 3, viz: "...Firefighter Vella has been under my authority since December, 2001. During this time he has proven himself to be a competent and resourceful firefighter, both on the fireground and during station drills and exercises. He has shown good communication skills during activities such as fire education at local schools. Firefighter Vella had previously been behind in his OTEN studies due to personal problems at home and had been granted additional time to complete his modules. These problems at home have only recently been resolved and Firefighter Vella assures me that he will now be able to study to his full potential. He is also aware of the ramifications of In Order 2002/21 re progression and promotion to qualified firefighter. I therefore recommend that Firefighter Vella is granted this promotion..." 17 Nevertheless, Mr Guymer recalled Mr Baker saying to him that Mr Vella was "...a good firefighter at a fire but very difficult to motivate around the station, particularly with his studies...". Mr Guyer also claimed that later Mr Baker confided to him: "I remind Firefighter Vella about his module work every week, but nothing's being achieved. I find it difficult to motivate him. I think you'll need to transfer him to see if someone else can do it better." Mr Baker cannot recall speaking in those terms and does not believe that he did so. Nevertheless, from the evidence before me in this hearing, I have formed the view that the comments attributed to Mr Baker - that Mr Vella was a good firefighter in a practical sense but fell down badly in his competency training - is a fairly accurate description of him. 18 Mr Vella was suspended on pay on Sunday, 12 September, 2004 when he lost his drivers licence when he exceeded demerit points and did not himself report it the Fire Brigades. Police officers had apparently brought the matter to the attention of the Fire Brigades after Mr Vella had been discovered by them driving without an operative drivers licence. In fact, that suspension arose from an error by the Roads and Traffic Authority of New South Wales and he should not have lost his drivers licence at all. Mr Vella made an application to challenge the loss of points he had received which had taken him over the level to lose his drivers licence and made further inquiries concerning the matter on Monday, 29 November, 2004. On Tuesday, 30 November, 2004 the RTA ultimately wrote a letter to Mr Vella in the following terms: "...A review of your traffic record was conducted which indicated that the...application was attached to the offence of '...drive using hand-held mobile phone...' committed on Friday, 5 December, 2003 in error. As a result of the error a demerit points warning letter was issued in error. Your driving record has been adjusted to reflect the correct details. The RTA apologises for any inconvenience caused by this matter..." 19 Mr Vella was not allowed to return to work following his suspension. He remained on suspension until the termination of his services on Thursday, 20 January, 2005. On Wednesday, 22 December, 2004 Mr Greg Mullins, the Commissioner for the Fire Brigades, had written to Mr Vella in the following terms: "...I am considering whether you are suitable for continued employment in the New South Wales Fire Brigades and whether I should terminate your employment. You have failed to achieve the mandatory achievement of progression to qualified firefighter within a reasonable time. Your progression record is as follows: Rank Due Date Promotion Date Level 2 19.11.00 25.7.01 Level 3 19.11.01 11.10.02 Level 4 19.11.02 Incomplete Qualified 19.11.03 Incomplete... On Friday, 28 May, 2003 (the Fire Brigades) wrote to you reminding you of the provisions of the award and that you had until Friday, 19 November, 2003 to achieve your progression to qualified firefighter. You were transferred to Lakemba fire station to assist you to meet your training requirements. On Friday, 7 November, 2003 you applied for a six month extension to allow you to complete those requirements. The Acting Deputy Regional Commander, by report dated Friday, 21 November, 2003 recommended your application be approved and requested any action to terminate your services be deferred until Wednesday, 19 May, 2004. I considered the six months to be a 'reasonable time' in accordance with Clause 13.6.2 of the award for you to complete the requirements and on Tuesday, 9 December, 2003 I granted your application. Since that time you have only completed Module 2.02 [Inspect and Test Equipment] on Wednesday, 12 November, 2003, Module 2.24 [Fire Agency Awareness 2] on Tuesday, 23 December, 2003 and Module 2.13 [Fire Suppression 2] on Sunday, 28 March, 2004. You have therefore failed to comply with the requirements of the award in accordance with the six month extension to Wednesday, 19 May, 2004. Up until Sunday, 12 September, 2004 you have made no further progress. You are hereby given 14 days from the date of this letter in which, if you wish, you may make written submissions to me as to why I should not terminate your services in accordance with the award..." 20 In accordance with Clause 13, the Fire Brigades informed the FBEU of the impending termination of Mr Vella's services and on Monday, 10 January, 2005 the FBEU wrote on his behalf to the Fire Brigades, viz: "...Whilst Firefighter Vella has not completed his modules in line with Clause 13, the union is of the opinion that a number of other issues borne from his employment have reasonably prevented him from being promoted to qualified firefighter by the deadline of Wednesday, 19 November, 2003. Since March, 2003 Firefighter Vella has had an accumulated ten months off work with a reoccurring injury and four months whilst he has been suspended. That is 14 months where he could not have been expected to complete his modules. Not only has the lost time been a practical issue, but the rejection of his workers compensation claim and the stress of lost wages has made it difficult for Firefighter Vella to concentrate on the completion of the required modules. Taking all of this into account, the six month extension given to Firefighter Vella to complete his modules is not 'reasonable'. We seek that Firefighter Vella be afforded a further eight months to compensate for the lost time with a four month review to ensure he is progressing..." 21 That suggestion by the FBEU was rejected by the Fire Brigades which on Wednesday, 19 January, 2005 responded to the FBEU as follows: "...I have considered all of the reports submitted in relation to this matter, including the FBEU's submission. I am satisfied that Firefighter Vella has been afforded reasonable time to, and yet has not satisfactorily achieved, completion of the mandatory progression to qualified firefighter... Therefore...you are advised that, as Firefighter Vella has failed to achieve the mandatory progression to qualified firefighter within a reasonable time, I consider that he is unsuitable for continued employment in the New South Wales Fire Brigades and, accordingly, the services of Firefighter Vella are to be terminated effective from Thursday, 20 January, 2005..." Submissions 22 In its Part 6 application the FBEU has primarily sought Mr Vella's reinstatement in employment to his position as firefighter and that is the remedy pressed by Mr Nolan in the hearing. Reinstatement under S.89(1) is the principal remedy for an unfairly dismissed employee, viz: "The Commission may order the employer to reinstate the applicant in his or her position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed." That remedy has consistently been described as the preferred remedy for an unfairly dismissed employee [ Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67, Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 at pp.341 and 342, and Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346]. Mr Nolan was prepared to advance the proposition that, if Mr Vella does not meet the training requirements within a further reasonable time - he suggested another six months - then his employment would end at that time again. Therefore, unless Mr Vella applies himself diligently to his training his reinstatement is likely to be ephemeral. 23 But the fact that Mr Nolan's claim for reinstatement is conditional upon a strict training regime does not deny the remedy to Mr Vella. I note, for instance, that the Full Bench (Wright J - President, Walton J - Vice President and Boland J) in Little v. Commissioner of Police (No.2) (2002) 112 IR 212 ordered the reinstatement of a police officer, notwithstanding his intention to immediately retire. Relevantly, the Full Bench pointed out (at p.244) that: "...the effect of the making of an order for reinstatement will be that, having regard to the undertaking given by the appellant, he will retire rather than resume his position with the Service. In these circumstances and, having regard to the consequences of the removal, we consider that it is appropriate to reinstate the appellant in such a manner as to enable the appellant to retire with the relevant superannuation benefits..." A strict reading of S.89(1) - that reinstatement may only be ordered "...on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed..." - suggests to me that I would only be returning Mr Vella to immediate dismissal since he cannot presently comply with the essential training requirements of his position as firefighter. But, in the light of the decision in Little v. Commissioner of Police (No.2) , it appears to me that reinstatement may be either conditional or temporary, notwithstanding what is said in S.89(1). 24 With Mr Vella's domestic difficulties, the challenged workers compensation matter, the difficulties he experienced at the Revesby fire station, and the mistake over his drivers licence, he has certainly had a run of exceptionally bad luck. Ms Brus acknowledged in her submissions that "...the alignment of the planets..." had not been very favourable to Mr Vella. But the question before me is simply whether, in accordance with Clause 13, Mr Vella was given a "reasonable time" to complete the modules necessary to become a qualified firefighter. Mr Nolan, using language flowing from the comments of Sheldon J of the former State Industrial Commission in Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 at p.99 and which are readily understood in the industrial community, does not believe that, in all the circumstances, Mr Vella did not receive a "fair go". Mr Nolan argues in his submissions that there are a range of matters which the Commissioner of the Fire Brigades should properly have taken into consideration when he considered whether to grant a further extension of Mr Vella's qualification period: Mr Vella's initial domestic difficulties; the fact that he was absent for work on workers compensation for a lengthy period of time; the stress associated with the fact that his workers compensation was challenged - incorrectly it would appear; the urgent calls made on him as a result of bushfires; and the fact that he was absent on paid suspension and therefore not at work to assist him in completing his training. 25 Ms Brus submitted that Mr Vella had already been given a six month extension of time for the completion of the necessary training modules. There had been eight modules still for him to complete: he met only three of those modules during the extension of time for which he was provided. She argued that even if Mr Vella was absent from work on workers compensation and paid suspension, there was no reason for him to abandon his obligations for further training. It was his responsibility to attend to his training. Simply stated, Clause 13 laid down strict obligations on any firefighter to meet a level of competency in a specified time and, despite the efforts of a range of officers of the Fire Brigades and an extension of time, Mr Vella failed to meet those obligations. There is doubt in Ms Brus' mind - and, I must confess, in mine - that Mr Vella actually can reach those objectives - five training modules - having regard to the slow progress he has made already. The distractions which Mr Vella is using as excuses for finishing his training programme, are the type of issues which may regrettably arise from time to time in any employment situation. Conclusion 26 Ordinarily, the lack of appropriate qualifications for a particular position may not always be a valid ground for a dismissal. In the Holy Family School Case (1975) AR 991 Dey J of the former Commission dealt with the termination of the services of a teacher who lacked appropriate qualifications, commenting (at p.994) that: "…I agree…that to terminate, because of the lack of academic qualifications, the employment of a teacher who had been teaching acceptably at the school without them, without warning her that her employment would be terminated unless she took steps to become qualified, was to treat her unfairly…" But clearly Mr Vella was aware that his continued employment was dependent upon his achieving the necessary training levels. The evidence before me suggests that Mr Vella is a satisfactory firefighter in a practical sense. But Clause 13 lays down as a condition of employment for firefighters those training requirements. Any firefighter must satisfy those requirements and, importantly, he must do so within the time allocated for them. 27 I accept from the evidence that extensions of time for the completion of the training are granted rarely by the Fire Brigades. Nevertheless, in terms of Clause 13, such extensions of time are permitted, at the discretion of the Commissioner of the Fire Brigades, "...after taking into account all the circumstances of the case of the employee concerned...". In the light of the evidence adduced in this hearing, I share with Mr Nolan the view that it would have been fairer that Mr Vella be granted a further six months to complete his training and I order his reinstatement to permit that to occur. However, Mr Vella must be under no delusions that he will certainly be obliged to complete all the outstanding modules within a period of six months. As Mr Nolan has conceded, his failure to do so, will leave him very little scope for any further redress. The task falls on his shoulders alone. O R D E R 1. The New South Wales Fire Brigades shall reinstate Mr Paul Vella in employment as a firefighter without payment for any period following his dismissal. 2. This order shall take effect on and from Thursday, 28 July, 2005. P J CONNOR Commissioner LIST OF WITNESSES Baker, David station officer Galwey, Gary* firefighter Guymer, Michael zone commander Lysle, Russell regional workplace assessor (retired) Osborne, Craig* station officer Ruscoe, Mark senior firefighter Russell, Robert station officer Stathis, Peter* superintendent Vella, Paul applicant *Evidence admitted from written statement without the need to be called for cross-examination DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.