Firefighters and the people beside them. Know your rights at work.

The recruit applied in August 2023, disclosed his type 1 diabetes during the application, and started work and the 15-week recruit course on 2 September 2024 [2]. A designated aviation medical examiner had examined him before he started and recorded that he "passed the medical standard required" [23]. After about 10 days of the course he was told he could no longer take part, and on 10 December 2024 he was dismissed [3], [30]. He alleged the dismissal was because of his diabetes, contrary to s 351 of the Fair Work Act [4].

An endocrinologist's report said that, with an appropriate workplace protocol, he would not be likely to endanger the safety of air navigation [27], [57], and the protocol was not meaningfully attacked [59]. Airservices said the reason was his inability to meet the CASA medical standard, not his disability [60]. For an interim application the Court rejected any distinction between the "safety concerns" and the diabetes itself [62], and found serious questions of reasonable strength on whether he had passed the medical and met the Class 2 standard [64].

On the balance of convenience, the Court weighed the move from Cairns, the mortgage and the importance of work in his favour, giving the move only some weight [66]-[70], and found the safety concerns much reduced during training in a controlled environment [74]. It ordered that he be reinstated until the final hearing and be allowed to undertake the course starting in January 2025 [76], [78], [80].

Outcome: For the recruit, at the interim stage only. The Court found a serious question to be tried and ordered interim reinstatement and a place on the January 2025 recruit course; the claim itself had not been decided. Where this comes from: Commonwealth (Fair Work Act 2009 (Cth) general protections, s 351, and the Civil Aviation Safety Regulations 1988 (Cth)). The same law applies to Airservices crews at Perth and other WA airports.

The firefighter had worked for Airservices since 2005 and was a Lead Aviation Firefighter at Coffs Harbour aerodrome [4]. He injured his right hand in February 2019, which was an accepted workers' compensation claim [5], and suffered a psychological injury in 2020 after a code of conduct investigation [6]. He had not worked since November 2019 and was receiving workers' compensation at 75% of his normal weekly earnings for both claims [7]-[8].

A psychologist reported in May 2023 that he had no capacity for work for the foreseeable future, and a designated aviation medical examiner reported in October 2024 that he could not return to his role and that a return would raise significant safety issues [9]-[10]. Airservices wrote to him on 23 October 2024 proposing termination and inviting a response within 14 days, his lawyer responded, and on 5 December 2024 Airservices communicated its decision to dismiss [11]-[13].

The Commission found a valid reason related to capacity: he had been unable to do any work for about five years and the medical evidence was clear [25]-[26]. He was told the reason and his lawyer's response was considered [30]-[31]. The dismissal was not harsh, unjust or unreasonable, and the application was dismissed [38].

Outcome: Lost by the firefighter. The dismissal was not harsh, unjust or unreasonable. Where this comes from: Commonwealth (Fair Work Act 2009 (Cth) unfair dismissal; the decision does not say which workers' compensation scheme paid him). For DFES firefighters, the WCIM Act requires the employer to provide the pre-injury or a suitable position for 12 months from first incapacity, unless the worker is lawfully dismissed, and in that period forbids dismissal solely or mainly because of the incapacity and requires 28 days' notice in the approved form before any dismissal (s 166(1)-(3), s 168(2)-(4)).

The employer provides firefighting services at Defence bases [2]. The firefighter started at RAAF Base Wagga in July 2016 as a watchroom operator, moved to firefighting in December 2016, and sought reclassification as a Qualified Firefighter on the strength of his retained firefighter service with Fire and Rescue NSW [3]. He had been a retained firefighter since 19 December 2012, paid for attendance at fire calls and training [7].

The agreement made a Qualified Firefighter someone who had completed at least 36 months' service as a paid firefighter in the fire and rescue industry and the required modules [33]. The company's evidence was that only full-time paid service was meant to count, and that the wording had been copied from its Victorian agreement without anyone considering retained firefighters, who do not exist in Victoria [9].

The Commission held that "service" carries the meaning the Fair Work Act gives it in s 22, a period during which the employee is employed by the employer [43], that a "paid Firefighter" is one who is paid for the work [44], and that the fire and rescue industry plainly includes Fire and Rescue NSW [45]. Retained service therefore counted; he had 36 months of it and had completed the modules [47]. The Commission also held it still had jurisdiction even though a new agreement had replaced the 2015 agreement after the dispute began [4], [48].

Outcome: Won by the firefighter (represented by the United Firefighters' Union of Australia). His retained firefighter service was to be counted. Where this comes from: Commonwealth (Fair Work Act 2009 (Cth) s 739 dispute under the Transfield Services Defence Base Services (NSW) Fire and Rescue Enterprise Agreement 2015). WA Defence-base crews are under their own agreement, and the result depends on its wording.

The claim for compensation arose from her death on 10 January 2011 during the Grantham flood event [1], on the basis that she was a member of the Grantham Rural Fire Brigade performing brigade duties [2]. The only issue on appeal was whether she was a member of the brigade at the time [5]. It was common ground that the insurance contract covered her if she was a member and performing duties [10].

WorkCover and the Regulator said she was not a member [4], and argued that a completed application form was a precondition to the members' vote under the brigade's constitution [23]. The Commission found she had submitted all the documents the brigade's procedures required [14], [18], and that a majority of members at a general meeting on 30 September 2010 had voted to accept her [15], [34]. It did not matter that the newly elected first officer had not signed the brigade endorsement, because the brigade's constitution did not require it [15], [21].

Some steps were undone: she had not been formally issued with protective clothing, the endorsed application had not been sent to the area office for validation, the Commissioner's approval had not been obtained and she had no volunteer number, though she had performed some firefighting duties before and after the vote [22]. The Commission held none of these went to whether she had been accepted as a member [22], and rejected the argument that a statement in her form was a misrepresentation that undid the vote [29]-[31]. She was a member from 30 September 2010 [34], and the appeal was allowed [36]. Whether she was performing brigade duties when she died had not been considered by the Regulator and was left to WorkCover Queensland [5], [36].

Outcome: Won by the husband on the only question decided. The Regulator's decision was set aside, the claim was sent back to WorkCover Queensland to decide compensation, including whether she was performing brigade duties, and the Regulator was ordered to pay costs. Where this comes from: Queensland (Workers' Compensation and Rehabilitation Act 2003 (Qld) s 14, insurance for rural fire brigade members). WA law is different: the insurance a responsible agency must hold under Part 6B of the Fire and Emergency Services Act 1998 (WA) covers registered volunteers (members of bush fire brigades, volunteer fire brigades, FES Units, SES Units and VMRS Groups) and also unregistered volunteers working under the direction of a registered volunteer or of DFES operational staff (s 36ZM definitions of "registered volunteer", "unregistered volunteer" and "volunteer"; s 36ZQ(2), s 36ZR). So in WA a gap in registration paperwork does not by itself take a volunteer outside the scheme.