The debate that we’ve been having on these pages prompted me to go and look up some cases involving OHS and discrimination in the emergency services. The recent cases I found were interesting but did not establish any significant precedents. It is interesting that what they have confirmed is that the emergency services, like every employer, cannot make assumptions or judgments to say that ‘people with this disability can never do this job’ rather they have to consider each individual, the extent of their disability and how it affects their ability to perform the inherent characteristics of the job at hand.

The recent cases that I have looked at have, by coincidence, involved cases where the applicant suffered a vision defect, in one case the firefighter was blind in one eye, in the other two cases, applicants for appointment as a firefighter and an ambulance officer were colour blind.

In Lavery -v- Commissioner of Fire Brigades [2003] NSWADT 93 the tribunal made the observation that is probably obvious to everyone involved in this area, that is:

The circumstances of this case are surrounded by a thicket of legal regulation. The case sits at the junction of four separate statutory schemes. Those schemes are, first, the Anti-Discrimination Act 1977 (NSW), which renders it unlawful for an employer to discriminate against an employee on the ground of disability in certain circumstances, which include the provision of opportunities for training and promotion; secondly, occupational health and safety legislation … which renders it unlawful for an employer to place the health and safety of its employees at risk; thirdly, the Industrial Relations Act 1996 (NSW), which provides for the making of awards which govern working conditions; and, fourthly, the Fire Brigades Act 1989 (NSW) which vests the respondent with various functions and obligations which include appointing people to be members of fire brigades and exercising the functions of an employer in relation to those people. In addition, the respondent has obligations at common law to ensure that the safety of his employees is not jeopardised by requiring them to work with other employees who cannot safely perform their work. It is not an easy task for an employer or an employee to determine which of these laws is to be paramount in the event that there is actual or apparent conflict between them. Not surprisingly, the parties have taken different views about which particular statutory provisions should prevail.

The Tribunal had to work its way through that legislative maze. In that case the application had been employed as a firefighter in 1968 but suffered a loss of one eye in 1971. Thereafter he was assigned to duties in the watch room rather than as an active firefighter. He was at the time of his injury, a second class firefighter. It was fire brigade policy that a firefighter had to attain the position of ‘qualified firefighter’ before he or she could be offered promotion or special duties. As the applicant could not under take active firefighting duties he was excluded from the opportunities for training and appointment as a qualified firefighter and therefore from any career progression. This was communicated to him in a letter of 1971. In 2001 he brought a complaint of unlawful discrimination on the basis of his disability.

The Tribunal (in a decision that was affirmed on appeal, Commissioner of Fire Brigades (New South Wales) v Lavery [2005] NSWSC 268) upheld the complaint finding that the Fire Brigades had continued to discriminate by failing to provide opportunities for training and promotion. Interestingly the Tribunal noted that there is a clause in the Anti-Discrimination legislation to allow discrimination where a person cannot perform the inherent requirements of the job but this defence only applied to the question of whether or not a person should be offered employment or their employment terminated. It was not a defence to claim that there was discrimination in the ongoing employment.

The respondent has sought to rely upon what is usually referred to as the ‘inherent requirements’ defence in … the Act. It has done so erroneously. The ‘inherent requirements’ defence is available only in the limited circumstances set out in s 49D(4). … By virtue of section 49D(4) it is open to an employer to argue that it lawfully discriminated on the ground of disability when determining not to hire a person, or when it dismissed an existing employee, because that person, as a result of his/her disability, was (a) unable to perform the inherent requirements of the particular employment, or (b) would require assistance in order to perform the inherent requirements that would impose an unjustifiable hardship on the employer. …

[The lawyer for the Fire Brigades] … adopted, and adapted to the facts of this case, the argument … that an employer which does not wish to promote a disabled person to a new position because of concerns about his/her capacity to perform the inherent requirements of that position may be better advised, in some circumstances, to dismiss that employee rather than to decline a promotion application because of the availability of the ‘inherent requirements’ exception to liability in dismissal cases. Whilst this argument exposes a defect in the legislative scheme it does not persuade us that the Tribunal should construe s 49D(4) as meaning anything other than what it says.

It is also a defence to discriminate against a person if that is required to comply with another law. In this case the Fire Brigades argued that they could not provide training to the applicant as that would expose them to prosecution for breaching the OHS Act. The Tribunal found that arguing that something that has not happened will necessarily be criminal is a very difficult argument and the Brigades could not demonstrate that any action that they took would necessarily breach the Act.

The Tribunal found

The contravention of s 49D(2)(b) is most readily apparent. There were, in fact, two distinct ways in which this provision was breached. The respondent discriminated against the applicant on the ground of his disability, firstly, by re-deploying the applicant in a non-operational position in which he was denied the training and promotional opportunities afforded to other firefighters at his rank and, secondly, by affording him as non-operational firefighter no training and promotional opportunities which were equivalent to those afforded to operational firefighters.

The Brigades should have considered what the applicant could actually do and making training available. Although not stated one has to ask why they did not consider giving him training and supervisory roles in the Watch Room that would have allowed him to have a career over 30 years of service. It should not have been that he had to push for training opportunities when training and career progression was made available to all other firefighters.

This case looks like a decision was made in 1971 and then never revisited even though the communities attitudes to disability and discrimination had moved a long way.

The other cases were Browne v NSW Ambulance Service [2004] NSWADT 192 and Van der Kooij v Fire and Emergency Services Authority Of Western Australia [2009] WASAT 221. In both cases the applicants argued that they were discriminated against when they were denied employment as a trainee ambulance officer and a trainee firefighter respectively, on the basis of their colour blindness. In these cases the ambulance service of NSW was found to have acted in a discriminatory way, but FESA did not.

The difference was clear. In Browne’s case, his application process was terminated when his colour vision deficit was discovered on the basis that the service didn’t employ anyone with that disability. They did not take into account his performance in other high pressure work where he had managed without problems. They argued that they could not employ him as his vision would mean he could not qualify for the relevant drivers licence which he then went out and obtained. Although it was not an actual policy not to employ people with this particular colour deficit, an expert witness could not envisage any time when such a person would be employed.

The Ambulance Service argued that the applicant posed an unacceptable risk when it come to driving an ambulance and this was an inherent part of the job and that therefore the discrimination was lawful. The tribunal found, however, that the Service had failed to show that “taking into account the Applicant’s past training, qualifications and experience relevant to the particular employment and all other relevant factors, that it is reasonable to take into account, the Applicant because of his disability would be unable to carry out those inherent requirements of the particular employment.” His previous experience, his good driving record and the unclear evidence on whether or not people with colour blindness posed an increase crash risk meant that the Service, by relying on the simple colour tests, had discriminated unlawfully. (For a similar approach, with a similar outcome but this time with respect to diabetes, see Vickers v The Ambulance Service of NSW [2006] FMCA 1232).

In van der Kooij’s case the facts were similar but the approach of FESA was quite different. Having identified that the applicant was colour blind they sent him for further expert testing and then, at FESA’s expense, they sent him to Sydney to undergo a test specficially designed to determine whether or not a person’s colour vision would impact upn their ability to perform the very tasks required of a firefighter. The applicant failed all the tests but there was no discrimination as FESA had given him every opportunity to demonstrate his ability rather than simply relying on a rule that if an applicant fails a simple test, they cannot be employed.

As noted the difference was clear, FESA looked very much at the individual and his particular abilities measured against the inherent tasks required in his planned employment. Having done that they could rely on the defence that they had established that he could not safely perform the necessary tasks. The Ambulance Service on the other hand had simply applied a blanket rule rather than asking whether in this particular case, the identified disabilyt would actually pose a threat to the applicant, other officers or patients.

As noted, these cases are not significant precedents but they confirm that when deciding who should or should not be employed, emergency services (as with all employers) should not assume that a person with an identified disability cannot do the job but should take reasonable steps to test that hypothesis and determine whether or not, in their case, they can perform the tasks required. Failure to do that is unlawful discrimination.

Michael Eburn