I’ve been asked to comment on the law relating to the dismissal of NSW firefighters. My correspondent writes:

My topic is the termination of emergency services personnel by the respective Commissioners using a means such as their powers under the Regulations. The reason I raise this is because I have heard “on the grapevine” that a former police officer is suing because he alleges that he was unlawfully terminated.

I know of several firefighters whose employment has been terminated by the Fire and Rescue Commissioner using his powers under the Fire Brigades Regulation. However, in doing so he cites medical reasons but none of the terminated firefighters have been assessed by medical doctors in relation to the Commissioner’s allegation that they are no longer fit to serve. It appears to me that the actions by the Commissioner are unlawful and if that is the case the firefighters have been unlawfully terminated and should be reinstated to their positions or at least medically assessed.

Further, the terminated firefighters had all made allegations of bullying and harassment prior to their termination and now find that their employment is terminated.

Any thoughts?

Apart from the general power that any employer has to dismiss staff, the Commissioner of NSW Fire and Rescue has specific authority to terminate staff set out in the Fire Brigades Regulation 2008 (NSW) s 12. That section says the Commissioner

may terminate a firefighter’s appointment as a firefighter:
(a) if the firefighter is no longer medically or psychologically fit to exercise the functions of a firefighter…

My correspondent also wrote and said “You will note that the Regulation does not require the Commissioner to justify his decisions based on medical evidence and, so, it would appear that all power in relation to terminations rests with the Commissioner’s interpretation” but that is not correct.

In the High Court of Australia, Chief Justice Mason and Justices Deane and McHugh said that the rules of natural justice must be applied “[W]hen a statute confers power … to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations” (Annetts v McCann (1990) 170 CLR 596, 598). That principle was applied by the New South Wales Court of Appeal in Castle v Director General SES [2008] NSWCA 231, [49] when Justice Sackville found that the Commissioner of the NSW State Emergency Service could not terminate a volunteer’s appointment as a Unit Controller without first giving the controller the opportunity to be heard and to address concerns about his capacity for the task.

The facts are not the same but the point is that even where a Commissioner has the power to terminate they cannot do it on a whim. If the Commissioner has the power to terminate a fire fighter’s employment on the basis that the ‘firefighter is no longer medically or psychologically fit to exercise the functions of a firefighter’ then the Commissioner would have to have some evidence to support that view and would have to give the firefighter the opportunity to refute it, allowing the firefighter to explain why his or her condition, whatever it is, does not mean they are not fit to perform those duties. For a discussion on a similar issue, but relating to pre-employment testing, see my earlier post on Occupational Health and Safety and Discrimination.

If a firefighter is dismissed without being assessed by a doctor then that would seem unfair. Where a NSW public sector employee believes they have been the subject of unfair dismissal they do have rights to seek a review of the decision. Under the Industrial Relations Act 1996 (NSW) an employee may seek a remedy if they claim their dismissal was ‘harsh, unreasonable or unjust’ (s 84). The application must be made within 21 days of the dismissal. An application may be accepted beyond the 21 day period if the Industrial Relations Commission is satisfied that there is ‘sufficient reason to do so’ (s 85).

In deciding whether the dismissal was ‘harsh, unreasonable or unjust’ the Commission must consider, amongst other things:
a) whether the employee was given a reason for the dismissal and
b) if a reason was given, whether there was any basis in fact (ie any grounds to believe the reason was true, in this contact, any factual basis to conclude the employee was not fit for duty) and
c) whether or not the employee ‘was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment’ (s 88).

If the Industrial Relations Commission is satisfied the dismissal was ‘harsh, unreasonable or unjust’ it may make orders for ‘reinstatement, re-employment, remuneration [or], compensation’ (s 89).

A quick search using the search term “fire and dismissal” in the database of decisions of the NSW Industrial Relations Commission (at http://www.austlii.edu.au/au/cases/nsw/NSWIRComm/) brings up 11 claims of unfair dismissal against the NSW Fire Brigades or NSW Fire and Rescue between 1998 and 2013. There are bound to be more that settled or that are not brought up by that rough and ready search.

To return to the facts as given in the email I received, if it is true that ‘none of the terminated firefighters have been assessed by medical doctors ‘ but the reasons given for their dismissal was that they were medically unfit, then it would appear that the dismissal was unreasonable, unjust and unfair and there was a denial of natural justice, in which case they could seek to be reinstated provided they made an application within 21 days.

If they ‘had all made allegations of bullying and harassment prior to their termination and now find that their employment is terminated’ then the inference being drawn is the alleged reason, being unfit for duty, is a shame and their dismissal was really to get at them for these allegations. If that could be established that would also show that the dismissal was unfair and unjust but it does not get around the 21 day time limit.

Without going into particular facts what we can say is that a firefighter who believes they have been dismissed in a way that is unreasonable, unjust or harsh, or for reasons that are a ‘sham’ should see their Union or a lawyer of their choice as soon as possible in order to make an application within the very short time frame allowed. If that time limit has already passed they should seek advice on whether they would be successful in getting leave to file an application out of time under s 85.

Michael Eburn
4 June 2013