Australia: Employers decision to medically discharge a firefighter with history of PTSD was wrong

Hall Payne recently represented the FBEU and their member, a firefighter who had until 2021, been employed with Fire and Rescue NSW (FRNSW). The member had been a firefighter for 10 years. He was also employed by NSW Ambulance as a paramedic and had held that job for 3 years. He developed a psychological injury, PTSD, in 2018 as a result of traumatic experiences at work and FRNSW sought to medically discharge him in 2021 for being unfit for duty.

Worker resigns from NSW Ambulance

Following his diagnosis, the worker made a worker's compensation claim against NSW Ambulance.

After more than a year of medical treatment, the member's PTSD went into remission. His doctor recommended a slow return to work with NSW Ambulance as part of his ongoing treatment.

Ideally, this would involve working in support roles to facilitate slow adjustment to the work environment. Unfortunately, NSW Ambulance refused to create such a role and refused to grant the client further leave without pay. As a result, the client felt he had no choice but to resign from his job at NSW Ambulance.

Fire and Rescue NSW subsequently seeks to medically discharge him from their employment

FRNSW, hearing about his resignation from NSW Ambulance, arranged for the worker to undergo a medical assessment. This seemed to be in response to the worker's attempt to return to work with FRNSW.

The doctor who was engaged by FRNSW determined that the member was unfit for duty as a firefighter. The doctor reasoned that inevitable exposure to traumatic incidents might cause a relapse of his psychiatric symptoms. The doctor gave significant weight to the fact that, as a person with a history of PTSD, the member had a higher risk of future psychiatric injury than most people.

The fact that the client's PTSD was in remission and that he no longer exhibited any symptoms of PTSD, did not change the doctor's mind. Based on this medical report, FRNSW decided to medically discharge the employee.

What does medical discharge mean?

This is a process under the applicable award. If a firefighter is found to be permanently unfit to perform the firefighter's ordinary duties, then the firefighter will be discharged from his employment. This is in effect a dismissal.

Appealing the termination of employment

Having received the FRNSW decision to discharge the worker, the FBEU and its member developed a legal strategy with Hall Payne to overturn that decision. The union filed a dispute in the NSW Industrial Relations Commission and during that process, obtained our own medical evidence.

The NSW Industrial Relations Commission decisively overturned FRNSW's decision.

During proceedings, reports from five other medical experts/practitioners were considered by the Commission. This evidence demonstrated that the member's PTSD was in remission and that he was fit to return to work.

The Commission considered that the FRNSW medical assessment showed nothing more than that the member was 'somewhat vulnerable' to relapse, a description that was unquantifiable.

The Commission also observed that many ordinary people are more susceptible to psychological injury than others, some potentially more so than the member. Like anyone in the general population, potentially marginally higher vulnerability to psychological harm should not affect a person's fitness for work.

The Commission also noted the potentially dangerous precedent that might be set by this medical discharge:

I reject the proposition which underpins Dr Parmegiani's opinion that Mr Beasley is "unlikely to resume his pre-injury role of retained firefighter", which is that any firefighter (and, presumably any other front line workers who are exposed to traumatic incidents such as police, paramedics, nurses and doctors) who has been diagnosed with PTSD, is permanently unfit to perform their ordinary duties and should, effectively, be consigned to the scrap heap. Such a proposition pays no regard to the steps that such firefighter may have taken, such as Mr Beasley took with Mr Oxley, and may be continuing to take, in order to overcome the symptoms of PTSD and to cope with the risk of relapse upon further exposure to traumatic incidents (paragraphs 40-41 at [5]). I am supported in this rejection by the opinions of Mr Oxley, Dr Kasim, Mr Anning, Dr McClure and Dr Canaris.

As a result of the decision, the worker is now entitled to return to his position as a firefighter with FRNSW.

We are really pleased with this outcome for the FBEU and its member. It will hopefully set a precedent that persons who have suffered PTSD can indeed safely return to work in emergency services.

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