Knockback over impairment okay — safety at issue

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Knockback over impairment okay — safety at issue

The rejection of a prospective firefighter because he is severely colour blind was not discriminatory, a WA Tribunal has ruled in finding he represented an 'unacceptable risk' to safety.

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The rejection of a prospective firefighter because he is severely colour blind was not discriminatory, a WA Tribunal has ruled in finding he represented an 'unacceptable risk' to safety.
 
In May 2006, the volunteer fire fighter applied to Fire & Emergency Services Authority of Western Australia (FESA) to become a career fire fighter.
 
During the recruitment process, the applicant was required to undertake a pre-employment health assessment and was diagnosed with colour vision deficiency.
 
FESA then referred him to a specialist in New South Wales to undergo another colour vision test, involving simulated tasks of a firefighter that were colour-critical. The applicant again failed the test.
 
Application rejected
 
FESA rejected his application on the ground that he was medically unfit because his impairment posed an unacceptable risk to himself, other firefighters and the general public.
 
The applicant lodged a claim for discrimination, alleging the authority did not give him an opportunity to prove he could do the job through a probationary period and that he could use colour view corrective lenses to remedy any risk that FESA says could arise.
 
Further, he claimed FESA had required him to undergo the NSW test that other applicants were not required to do and it had sent him to do the test merely to confirm a decision it had already made — to reject his application because of his impairment.
 
The authority accepted it had directly discriminated against the applicant, but argued it was 'reasonable' to do so because of the unacceptable risk posed by his impairment.
 
No unlawful conduct, appeal
 
A Tribunal found that colour is a critical component of the inherent firefighting duties and the applicant's colour vision deficiency was a safety risk.
 
FESA was excused from unlawful conduct under s66Q of the WA Equal Opportunity Act 1984.
 
The Tribunal also found that the NSW test was a 'fair' and 'practical' means of objectively assessing the applicant's individual capacity to undertake firefighting duties and whether he would pose an unacceptable risk if he were a career firefighter.
 
The applicant appealed the decision.
 
Colour important in firefighting
 
State Administrative Tribunal deputy president Judy Eckert, member Jack Mansveld and sessional member Christina Winsor noted that firefighters are required to work in emergency settings under extreme time pressures and often in very poor visibility conditions.
 
They therefore found that the ability to identify colours accurately and quickly is an 'important aspect' of a firefighter's duty.
 
'The reliance on cues other than colour in circumstances faced by career firefighters will often be unacceptable as it increases the time taken to make a decision and it influences the accuracy of the decision,' they said.
 
'The consequences of not being able to identify a colour could be catastrophic.'
 
Can't rely on colleagues
 
The Tribunal accepted the applicant's evidence regarding his experience as a plumber and the various cues that he relies on to enable him to work efficiently and effectively despite his colour vision impairment.
 
However, they found, he does not work in critical emergency situations and his response would be slower in an emergency than other firefighters.
 
They also found that a firefighter cannot rely on assistance from other emergency service providers in a crisis situation.
 
'We do not accept that Mr van der Kooij could be employed based on a qualification that he rely on other firefighters and emergency service providers to assist him during an emergency situation,' they said.
 
The Tribunal ruled FESA's conduct in referring him to undergo a further test, and reject his application when he failed that test, was not discriminatory.
 
Passionate, but lacking judgement
 
The judges concluded by noting that the applicant was 'clearly very enthusiastic and passionate' about firefighting.
 
'It was suggested that he was obsessed with becoming a firefighter and to some extent that showed through when he gave his evidence,' they said.
 
'It is clear that Mr van der Kooij cannot understand where and why he would have trouble being a firefighter. In our view, this lack of judgement could potentially make matters worse for him.'
 
The applicant's appeal was dismissed.
 
 
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