In Andrews v Commissioner, Fire and Rescue NSW; Murrell v Commissioner, Fire and Rescue NSW [2026] NSWIRComm 1062 the Industrial Relations Commission heard two cases of alleged unfair dismissal brought by two retained firefighters at the Branxton-Greta Fire station.  Both were dismissed on 3 March 2026 having been warned that their attendance at drills and call outs was unsatisfactory and having been placed on three-months monitoring. 

The Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2024 provides that retained firefighters are ‘required to attend a minimum of 33% of all calls received by the employee’s brigade in any six month period’ and ‘a minimum of 75% of all regular drills conducted at their brigade in any six month period’ (cl 22.1.1.1 and 22.1.2.1 respectively). During the last period of review Ms Andrews attended 15% of calls and 100% of drills; Mr Murrell attended 15% of calls and 67% of drills.  Further ‘Mr Murrell has had signifant previous issues meeting the attendance requirement and has been monitored for this issue on more than one occasion. In particular, on 22 February 2023 there was a previous consideration for dismissal’ ([9]).

A dismissal is unfair if it is ‘harsh, unreasonable or unjust’ ([11] quoting the Industrial Relations Act 1996 (NSW) s 84(1)). Considering the factors listed in s 88, the Tribunal found (at [13]-[20]):

  • Both employees were given reasons for their dismissal but only Ms Anderson was given a reason why her application for re-employment was refused (s 88(a)).
  • The reason for their dismissal was based in fact (ie they had not met the minimum requirements was an established and admitted fact) and each was given the opportunity to explain why they had not been able to meet the attendance requirements though in Mr Murrell’s case he was not given a response to his submissions so, said Commissioner Muir (at [15]) ‘I consider the substance of an opportunity to justify [his] reinstatement was not given to Mr Murrell’ (s 88(b)). 
  • Ms Andrews was given at least two warnings, and Mr Murrell was given ‘multiple’ warnings (s 88(c))
  • As to the nature of their duties (s 88(d)), Muir C said (at [18]) ‘I understand each to submit that their significant experience as firefighters should be taken into account largely in the nature of public interest. There is some force to this but in both cases, this must be balanced against the unreliability of each in performing this important public safety role.’

Was the decision unjust?

Muir C said ([21]-[23]):

… in neither case does it appear to me that the dismissal was unjust. Both were warned about inadequate attendance on two occasions.

Ms Andrews improved on her attendance at training but decreased on her attendance at callouts for firefighting.

Mr Murrell also went backwards at attending fire callouts. As set out above, Mr Murrell had been warned about this on previous occasions. Indeed, he had been asked to show cause why he should not be dismissed three years earlier.

Was the decision unreasonable?

There was a failure of the Commissioner to ‘engage with Mr Murrell after his dismissal’ ([25]).  The Commissioner continued:

In terms of the rest of the process, it is difficult to see much more that the respondent could have done. The documentary evidence is abundantly clear. The applicants in the agreed facts acknowledge that they knew what they were being monitored for.

Part of the applicant’s arguments were that they could not attend more often because of work and family commitments.  The Commission said (at [36]):

One further aspect of this requires more consideration, being whether the applicants’ family responsibilities made the dismissal unreasonable. This is a more finely balanced question.

But, he said (at [38]-[39]):

Neither of the applicants, for example, took or requested leave for an interim period. Neither gave any evidence of attempts to rearrange their other work commitments. Neither of the applicants met even half of the one-third attendance of fire callouts.

Some consideration could be expected for the reasons given by the applicants, but frankly it seems neither can meet close to the minimum requirements. Of course they prioritised their responsibilities as parents, but in doing so they demonstrated they cannot meet the requirements of attendance for the respondent.

The applicants did focus on their childcare obligations but, noted the Commissioner, they also worked full-time and Mr Murrell was in the defence force reserve.  ‘It is simply not true that childcare responsibilities are the sum and substance of the inability of the applicants to meet their attendance requirements’ ([42]).  

The respondent relied on the decision in Gianoli v Fire and Rescue, New South Wales [2013] NSWIRComm 1030 where Newall C said (quoted at [43]; emphasis added):

None of this is a personal criticism of Mr Gianoli. I accept that he has obligations which test his time severely, but it is simply that if one wants to keep a job, one has to do that which is required of you by the employer.

Was the decision harsh?

Muir C said ([44]-[46]):

The consideration of harshness for Mr Murrell does not seem to me to be a difficult one. Mr Murrell’s similar conduct had not resulted in such an outcome previously, so he was presumably surprised it did so on this occasion. Contrary to the expectation that I should conclude this makes his dismissal harsh, I consider it demonstrates forbearance by the respondent.

… for an employee with his history, I do not consider his dismissal was harsh.

With respect to Ms Andrews, she did not have the same employment history and had argued that she hoped to become a full-time firefighter (a career that she argued would be closed to her if she was dismissed but to be honest, I’m not sure why that would be the case. Plenty of people join Fire and Rescue NSW without coming from the ranks for retained firefighters).  The Commission took those factors into account ([48]) even so there is ‘an existence of base attendance requirements’ ([50]) and even though Ms Andrews knew her attendance was being monitored yet her attendance rate dropped and she did ‘not appear to have implemented any changes that assisted her attendance’ ([51]). Although the case was not as clear as in Mr Murrell’s case it was still the Commission’s conclusion that Ms Andrew’s dismissal was not ‘harsh’.

Unlawful discrimination?

If you’re going to take on a job that has minimum attendance requirements, you must consider whether you can meet them. If there are good reasons why you cannot meet those requirements, particularly in the long term, it is not sufficient to assume that the employer will lower its expectation, perhaps the better conclusion is that the job is not for you.

In terms of anti-discrimination law (which was not raised in this decision) one might argue that requiring attendance at the level set out in the award is a form of indirect discrimination (that is it is a rule that prima facie applies equally to everyone but in fact has a more significant impact on people with childcare responsibilities (Anti-Discrimination Act 1977(NSW) s 49T(b)).  It is not, however, unlawful discrimination if the person would be ‘unable to carry out the inherent requirements of the particular employment’ (s 49V(4)) and the requirements of being a firefighter is being able to turn out to fire calls. Further as Muir C noted (at [50], mentioned above) that there are 

… base attendance requirements for a variety of obvious reasons, including their own safety and their usefulness as regular or irregular attendees.

That is regular attendance at drills and callouts could be an ‘inherent requirement’ to ensure that the employee remains a safe and competent firefighter.  As noted, the applicants did not raise the issue of the Anti-Discrimination Act so the application of that law, above, is mere conjecture on my part. 

Conclusion

The applications by both firefighters were dismissed. 

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