After a firefighter’s request for 12 months of stress leave was denied, the Industrial Relations Commission has told the Fire Service to reconsider.

As recovery efforts continue in the wake of the 2019-2020 bushfire season, the psychological effects are still widely felt.

From a workplace perspective, many firefighters are reeling from the stress of working on the frontline. Some require additional support or extended stress leave to deal with the mental health effects.

At the same time, fire fighting services need to ensure they are well-resourced to face the ongoing challenge of managing Australia’s adverse weather conditions.

These issues recently came to the fore in a NSW Industrial Relations Commission (IRC) decision. When a firefighter asked his employer for 12 months of stress leave, he intended to utilise 321 days of accrued annual leave.

On top of the psychological stresses he reported experiencing in the aftermath of the bushfires, the employee also says he was subjected to workplace bullying from a previous manager. The bullying matter is being investigated by the Commission under the Work Health and Safety Act 2011 (NSW).

The Fire Service denied his stress request, noting the difficulty in filling the vacancy for a full year, and instead suggesting they arrive at a “compromise” – either a three month period of leave, or the employee would agree to resign at the end of the 12 months.

The Public Service Association (PSA) sought an explanation from the Royal Fire Service (RFS) as to what operational constraints prevented it from granting the employee’s leave request, and suggested the firefighter’s second-command would be an appropriate replacement.

The RFS did not take on the PSA’s suggestion, so the PSA then took the matter to the NSW IRC.

HRM looks into the case with Claire Brown, Principal Solicitor at KHQ Lawyers.

Barriers to granting stress leave

The operational issues – i.e. whether the employer can reasonably operate during the employee’s absence by filling their vacancy – is important in determining the onus on the employer to grant stress leave in this case, given the specific provisions of the award covering the firefighter’s employment, says Brown.

The “most significant issue” in the case is about “operational requirements, and whether they can be accommodated so that the [employee] can take the leave”.

As Industrial Relations Commissioner Janine Webster noted, “The right conferred upon employees… is that they will be entitled to the leave they apply for unless there are operational requirements that preclude the leave being granted.”

Commissioner Webster accepted there were some operational difficulties faced by the employer, including the geography of the work in remote NSW, which may make it more difficult to fill a temporary position.

However, she also indicated there were possible avenues to fill this position – including through an expressions of interest process that had already begun – and that these should be fully investigated before determining whether or not the employee’s stress leave request could be granted.

“Given [the employee’s] long service with the [employer] and the reasons he has given the request, it would be appropriate, in my view, that the [employer] reconsider the request at the conclusion of the expression of interest process,” Webster said in her decision notes. 

With consideration to these factors, the tribunal ordered the Fire Service to reconsider the employee’s stress leave request.

“The tribunal member didn’t make a definitive determination because she noted there are still some questions from an evidentiary perspective about whether or not there was the ability for him to be backfilled,” says Brown.

“The expressions of interest hadn’t closed yet and there might be someone identified in their talent pool… There may also be shorter periods of leave that could be considered, but that expression of interest needs to be filled.”

“She was ultimately saying, ‘Go and see if that can happen. We don’t have enough information yet to determine one way or the other. But let’s get that information and then go from there.’”

In response to the Commission’s ruling, a Fire Service spokesperson told HRM: “The NSW RFS is always considerate of leave requests by its members and, where possible, will seek to accommodate those requests whilst balancing appropriate service delivery to the community, as an Emergency Service.

“We’re acting on the recommendation from the Industrial Relations Commission in this case. Given this is in progress, it would be inappropriate to comment further at this time.”

Timeframe for stress leave

There is no time frame attached to section 88 of the National Employment Standards, which pertains to taking paid leave. If the employee has accrued the hours, they are legally entitled to take them.

“It says that annual leave is taken for a period agreed between the employer and the employee, but the employer can’t unreasonably refuse a request that an employee makes plans to take paid annual leave,” says Brown.

“That’s going to bring into play a whole lot of other considerations in terms of what constitutes an unreasonable refusal. It really considers a balance of the operational requirements of the business versus the employee’s needs and circumstances.”

Even though the employee had 321 days of unused leave accrued, the award he worked under doesn’t specify a time period for annual leave as part of the considerations, so whether he wanted to take 321 days or 30 days is “not strictly relevant” in this case, says Brown, but it does weigh into considerations around operational requirements and the length of absence.

She adds that it’s worth considering why the employee had accrued such a substantial amount of leave, and whether taking shorter periods of leave may have given him time off to tend to his mental health. 

Another factor to consider is whether or not an employee needs to utilise annual leave for mental-health related challenges.

“If an employee is stressed and unable to work due to illness, could he access other types of leave – such as personal leave?” says Brown.

“The reason for someone taking annual leave will factor into a determination of reasonableness. It may be that the person has accrued so much leave because they haven’t taken any for a really long time, and they need a long period to recharge.”

While employees are not obligated to take shorter periods of leave, rather than requesting a large lump sum, this could come into the consideration of reasonableness, says Brown.

“It may not be unreasonable to refuse 10 weeks off in one block, but it may be [unreasonable] to refuse two weeks off.”

Approving leave

When considering an employee’s stress leave request, a company should take a few key steps, says Brown:

• Check the details about leave requests included in any applicable enterprise agreement, modern award, contract and company policy. “Make sure there is nothing in there that is going to trip you up in terms of considerations as to whether or not leave is granted in the employee’s particular circumstances.”

• Balance the circumstances of the employer against the employee’s needs.
  
  “The employer needs to look at the totality of the facts and the circumstances in that particular case, and balance on the one hand, operational requirements – that may be needing to have continuity of business operations, or being able to have the required amount of staff at a particularly busy time, or having equitable access to leave for all your employees.”
  
  “On the other hand, you have to balance the circumstances of the employee, such as how much notice they gave and the implications of not granting leave.”

• Advise the employee whether their leave can be accommodated sooner rather than later.

If a stressful situation transpires in a workplace setting, such as returning to work after months in lockdown, consider that some employees may need to take time off to recuperate. Instead of waiting for leave requests to emerge, it’s worth being on the front foot and anticipating how your company might manage a potential surge in leave requests.

It should also be noted that most employees will not have accrued 321 days of annual leave, as occurred in the case at hand.

HRM has previously reported on steps to take if an employee runs out of sick leave. If an employee intends to take stress leave without pay, a similar set of steps could be considered such as:

• Creating a policy that covers long-term absences to ensure employees can take off a longer period of leave to care for their health, without the company being stretched too thin. The policy should cover employees rights to both paid and non-paid stress leave.
• Outline the evidence the employee needs to provide for their leave to be approved.

“Some employees might need a break because they’ve been dealing with all of these work-related issues… Or an employee might say they need to go and visit a sick relative who they haven’t been able to see during lockdown,” says Brown.

“All of these things come into the reasonableness requirements.”

Employees struggling with their mental health might need to take stress leave. AHRI’s Mental Health First Aid course can equip you with the skills to support employees’ mental health. Book in for the next course on 4 November.