Today’s correspondent reports they have:
… been a NSW RFS member for close to 9 year and heavily involved in arduous/RAFT team … After finishing Uni, I got a job working in [another area] and last year thought I’d apply for dual membership. In the membership process I declared that I was type 1 diabetic. RFS sent me to GP where I was cleared. Nothing happened for 6-7 months after numerous phone calls and emails I complained to deputy commissioner. Couple weeks after this I was notified that I had been deemed operational not fit and suspended from any operational roles. I then stated that I had been told that when I joined RAFT that type 1 diabetes wouldn’t affect my progress. Now they have just replied that I must be fit, and that diabetes deemed me unfit. They also stated that there had been no changes to RFS policy regarding health.
Is my suspension legal? As an unpaid employee I thought I was protected from being suspended like this? Wouldn’t they have to provide proof that I had been involved in an incident or near miss to suspended me like this?
This is a conflict between obligations under the Work Health and Safety Act 2011 (NSW) and the Anti-Discrimination Act 1977 (NSW).
Work Health and Safety Act 2011 (NSW)
The Work Health and Safety Act requires the RFS to ensure ‘so far as is reasonably practicable, the health and safety’ of workers, which includes volunteers (s 7). So the RFS has to take steps to ensure that both my correspondent is not exposed to a risk to his or her health and safety, and neither are other members of the RFS. If a volunteer is in remote areas with a RAFT (Remote Area Firefighting Team) then he or she may be exposed to risk if they suffer a hypo or hyperglycaemic episode; and other members of the Team may be exposed to risk if one of the team becomes incapacitated and requires assistance or evacuation. It is not for me, as I am not a clinician, to comment on the extent of that risk or how it might be managed but I think it is not problematic to say that such a risk must exist and the RFS then has a duty to mitigate that risk. All firefighting carries risk that can be managed by not sending anyone to fight a fire but that is not practicable, so it must be the case that it does not follow that the only response to the risk is to ban a person with type I diabetes from operational roles. The response to the risk that diabetes might pose to a firefighter and his or her colleagues, must be considered and proportionate considering the factors set out in s 18; that is:
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about–
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The Anti-Discrimination Act 1977 (NSW)
The RFS must also consider the Anti-Discrimination Act 1977 (NSW). That Act says a person must not discriminate against another on the grounds of disability (Part 4A). Disability means (s 4):
(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or
(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person’s body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The World Health Organisation (16 September 2022) says ‘Diabetes is a chronic disease that occurs either when the pancreas does not produce enough insulin or when the body cannot effectively use the insulin it produces’. I am not a medical doctor, but I would infer that diabetes could therefore fall into paragraphs (a) (a ‘partial loss of a person’s bodily … functions’) or (c) (‘the malfunction … of a part of a person’s body’).
If that is correct the Anti-Discrimination Act says that a person must not treat a person with that disability (ie diabetes) less favourably than they would treat someone without diabetes (s 49B). It is not unlawful discrimination if:
… the person because of his or her disability–
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
The Anti-Discrimination Act does not apply to volunteers
The prohibition on discrimination does not apply everywhere – it applies to work, and in particular with respect to employees, and in education, the provision of goods and services, accommodation and in registered clubs (ss 49D-49O). My correspondent refers to volunteers as ‘an unpaid employee’ but that is not correct. Volunteers may be workers for the purposes of the Work Health and Safety Act 2011 (NSW) but that does not make them employees or the equivalent of employees for all other purposes (and if you can access the Facebook version of this blog, see the discussion following the post Taking photos whilst deployed as a volunteer emergency worker (January 19, 2023)).
It is therefore hard to see how the Anti-Discrimination Act would apply to prohibit disability discrimination against a volunteer unless one could argue that by providing training and opportunities to serve, the RFS is providing ‘goods or services’ to its volunteers – see Anti-Discrimination NSW Volunteers and voluntary organisations (28 July 2021), and see also:
- Age discrimination in the NSW RFS (March 26, 2019);
- Application of anti-discrimination laws to volunteer applicants (August 24, 2018);
- Occupational Health and Safety and Discrimination (January 5, 2010) (noting that all the cases discussed there involved employees or applicants for employment, not volunteers)
RFS Service Standards
Even if the RFS is not bound by the Anti-Discrimination Act vis-à-vis its volunteers, it should behave as if it is – and that is, arguably, the effect of Service Standard 1.1.42 Respectful and Inclusive Workplace (8 September 2015). That standard says (at [3.19]) ‘Discrimination occurs when someone is treated differently or unfairly because they have a protected characteristic pursuant to anti-discrimination legislation’ and one of those protected characteristics is disability. That standard also says ‘Discriminating against a member of the NSW RFS in any of the following ways is against the law …’ but as noted that may not be true if the member is a volunteer. But we can, I think, infer that the RFS does not intend to discriminate against its volunteers in ways which would be illegal if they were employees and has adopted this Standard to set out that objective and to provide redress for all members of the RFS – volunteers and employees.
If we assume that the RFS wants to apply the Anti-Discrimination Act to its volunteers, then we can return to the question of whether this decision is contrary to the Act. Here it becomes a question of opinion, and the evidentiary basis of that opinion. The GP who assessed my correspondent as fit for duty has particular knowledge about the individual and their ability to manage their diabetes, but may or may not have specific knowledge about the roles and duties of remote area firefighting. The RFS has specific knowledge about remote area firefighting but not about the individual and we have no idea of who wrote any policy or the science behind any conclusions about type I diabetes.
Firefighting health standards
Service Standard 3.1.4 Remote Area Firefighter Fitness Testing sets out details of fitness testing for RAFT firefighters, but makes no mention of diabetes. That document does refer to the Australasian Fire Authorities Council (AFAC) (2002) Guidelines for Health and Fitness Monitoring of Australasian Fire and Emergency Service Workers, AFAC, Melbourne. A summary of those guidelines is published by AFAC. That document refers to Category A and Category B conditions.
Category A Category A conditions relate to circumstances that are not safely compatible with firefighting. Reasons for inclusion of medical conditions in Category A include a heightened risk of a serious adverse event or significant likelihood that a pre-existing condition will be made worse when the affected person performs the essential tasks of firefighting. Applicants should be aware that the presence of a Category A condition will usually preclude a person from firefighting duties unless there is specialist medical advice based on sound medical evidence to the contrary.
Category B Category B conditions indicates that a more detailed medical assessment is required. Usually, this must be conducted by an appropriately qualified specialist. The presence of a category B condition will commonly preclude firefighting, unless specified conditions are met.
Diabetes is listed under the heading Endocrine Conditions and Other Systemic Diseases as follows:
• Diabetes mellitus associated with:
(a) A history of disabling hypoglycaemia (low blood sugar) such as loss of consciousness
(b) Where the person has a poor awareness of the symptoms of impending hypoglycaemia
(c) Where there is evidence of any diabetes-related disease of other organs including eyes, kidney, heart, vascular system or neurological system
• Diabetes mellitus of any type without the features mentioned above
The RFS document also refers to NPWS Interim Guidelines for Fire Fighter Health and Fitness September 2003, but I am unable to locate them online.
I note that the Fire and Rescue NSW Health Standard for Firefighters (March 2016) says:
As diabetes is a risk for cardiovascular disease, and good cardiovascular health is required for firefighting, diabetes screening and assessment is important. Diabetes treatment associated with risk of hypoglycaemia is also assessed, as the absence of conditions resulting in impairment or acute incapacity is required for safe firefighting. Diabetes assessment is also relevant due to complications such as retinopathy (can result in visual impairment) and peripheral neuropathy (may affect balance), which can also impact on the effective and safe undertaking of firefighting duties.
This document sets out various factors to be considered when assessing cardiac risk. A very high risk applies with:
- diabetes and age >60 years
- diabetes with microalbuminuria (>20 mcg/min; or urinary albumin:creatinine ratio >2.5 mg/mmol for males or > 3.5 mg/mmol for females)
With respect to diabetes, the Health Standard says (at [12.2]):
Treatment with insulin has been assessed by Fire & Rescue NSW (FRNSW) as representing an unacceptably high risk in the firefighting context and will therefore attract permanent restrictions on firefighting activities. This takes into account the significantly increased frequency with which hypoglycaemia occurs in those treated with insulin, compared with those on non-insulin agents…
The following information therefore relates to firefighters who are not on pharmacotherapy, or on noninsulin treatment. When assessing a firefighter’s medical fitness for firefighting duties, consideration must be given to:
- satisfactory glycaemic control
- absence of severe hypoglycaemia (i.e. hypoglycaemia that results in impaired level of consciousness)
- presence of hypoglycaemic awareness
- absence of complications that impact on medical fitness for firefighting duties.
I don’t know about my correspondent’s status nor am I a medical practitioner, so I don’t need to know. The point of the above is to show that diabetes is a factor to be considered in firefighting and to indicate the sort of factors and risk management that has been adopted by the fire agencies.
What we can conclude is that the RFS do not need to ‘provide proof that I had been involved in an incident or near miss to suspended me like this’ rather they need to consider the factors listed and determine whether the risk is acceptable. That begs the question of how detailed was the history taken by the GP and the report to the RFS. It certainly implies that type I Diabetes is not a necessary bar to firefighting but it ‘will commonly preclude firefighting, unless specified conditions are met’ and particular consideration has to be given the unique nature of RAFT work.
The decision to suspend a firefighter from operational duties is legal if it is based on a proper assessment of their ability to perform the essential tasks of the job. Diabetes is clearly a legitimate concern. Whether the RFS has considered the relevant considerations such as those adopted by FRNSW, or simply adopted a blanket ban would be the relevant consideration. If they have adopted something like FRNSW, then one would hope they would help a person such as my correspondent to obtain a relevant specialist opinion, or an opinion from a treating practitioner to identify the patient’s history and their ability to control their diabetes. There previous successful service would also be a relevant consideration.
As for a remedy a volunteer could make a complaint to Anti-Discrimination NSW but as noted, prima facie the Anti-Discrimination Act does not apply. They may be able to help mediate an issue if everyone agrees but there would be no jurisdiction to impose a remedy. In that case the best solution would be to formally raise the concerns through the RFS grievance processes.
Is my suspension legal?
I cannot answer that without knowing how the decision was made, the nature of the reports provided, the RFS policy etc. Diabetes is clearly a legitimate consideration but in some circumstances a diabetic may be fit for duty but whether that extends to RAFT duties would be a matter for specialist medical consideration and the application of RFS policy.
As an unpaid employee I thought I was protected from being suspended like this?
A volunteer is not an ‘unpaid employee’. The Anti-Discrimination Act does not apply to volunteers.
Wouldn’t they have to provide proof that I had been involved in an incident or near miss to suspended me like this?
No, a risk assessment can identify a risk without having to wait for adverse consequences to actually arise.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Interesting point of comment is that QPS now allows applicants with Type 1 Diabetes to go through the recruitment process, it is no longer a disqualifying factor. Perhaps this will influence and change policies within other first-responder agencies.