Today’s correspondent has ‘… been a member of the RFS for approximately 15 years and currently hold[s] the rank of Deputy Captain’. They say:
Over the fire season, I had two medical episodes. After the second episode, I made the decision to take an extended break from operational activities.
I have subsequently been reviewed by my doctor who has indicated that they see no issues with me returning to active duty (with no restrictions).
The Captain of my brigade is regularly challenging this and attempting to insist that I withdraw completely from operation duties or limit to ‘light duties’ and has stated on more than one occasion that he will not allow me on the truck.
The question is: what is the authority a brigade captain within the New South Wales Rural Fire Service and, specifically, do they have the authority to prohibit a member from participating in operational activities?
The Rural Fires Act 1997 (NSW) has nothing to say about the role of the Captain. It does talk about ‘officers’ of a brigade (s 21) but that’s about duties and roles at a fire rather than administration of the brigade. There are no relevant provisions in the Rural Fires Regulation 2013 (NSW).
The standard constitution of a brigade (Rural Fires Regulation r 4 and Service Standard 2.1.2 Brigade Constitution) provides for the election of the brigade captain, but does not specify the captain’s duties. Service standards 2.1.4 Appointment of Field and Group Officers and 1.2.1 NSW RFS Ranking and Rank Insignia also have provisions about the appointment of captains and where they fit in the rank structure but again do not set out their duties. Service Standard 1.3.2 Powers of Officers is all about the power of officers to exercise emergency powers during a fire, not about the administration of a brigade or the sort of issues raised by my correspondent. There is a Brigade Management Handbook that I cannot access as it is behind the RFS Intranet but a draft consultation version of 2016 is available. It too does not add anything useful in this context.
The role of captain is a field role. The brigade is managed by the executive committee (Constitution [8.3]). Whether a person is a member is ultimately a matter for the District Office (Service Standard 2.1.6 Joining the NSW RFS as a Volunteer Member (Including Transfer Applications). It follows that the Brigade Captain has to deal with the members of the brigade that there are, he or she does not get to pick and choose the membership. Any member must be entitled to all the benefits and privileges of membership and to play any role for which they are capable and competent.
That does of course beg the question of who is capable, but it cannot be a matter for a brigade captain to decide that a person is not fit for duty without evidence of that; and a medical certificate to the effect that the person is fit for duty has to override any concern to the contrary.
A person unlawfully discriminates on the grounds of disability if a person treats another person less favourably than others on the basis that the person discriminated against ‘is thought to have’ a disability, or ’had in the past, or is thought to have had in the past’ a disability (Anti-Discrimination Act 1977 (NSW) ss 49A and 49B). Therefore, a brigade captain who refused to let a member take part in brigade work on the basis that the person’s past medical history means they now have, ro did have a disability could be guilty of unlawful discrimination particularly where there is evidence that there is no disability.
But, on the other hand, everyone has work health and safety obligations and a brigade captain, particularly when it comes to operational firefighting, along with everyone has to have the ability to say to someone that ‘you are not fit or safe to be in the team’. But there has to be some reason behind that, and it would be hard to find a reason based on a ‘past medical history’ when the person involved has received a clearance from their treating doctor.
In short, the powers of a brigade captain are not clearly spelt out in the RFS public documents. There may be something in the management handbook or a particular brigade’s Rules and/or Standing Orders. In the absence of that material there is nothing I can see in the Act, the Regulation or the Service Standard that would allow a captain to ‘insist that [a member] withdraw completely from operation duties or limit to ‘light duties’’ or refuse to allow a member otherwise in good standing ‘on the truck’.
If the captain has genuine concerns for the member’s or other members’ safety on the basis of evidence-based observations regarding fitness for duty, there are ways to deal with that other than direction. It would have to require consultation and discussion and, if necessary the involvement of a higher office. To refuse to let a member participate because of a belief that a past ‘medical episode’ means they are unfit may well constitute unlawful discrimination.