Fletcher v Metropolitan Fire and Emergency Services Board (No 2) [2013] FCA 118

REASONS FOR JUDGMENT 1 In this application the applicant, an employee of the respondent, makes a number of allegations of adverse action, discrimination and breaches of an enterprise agreement under the Fair Work Act 2009 (Cth) (the Act) against the respondent. By an interlocutory application dated 23 January 2013, the respondent sought a stay of this application. For the following reasons, the stay should be granted. 2 It is common ground that the applicant suffers from post traumatic stress disorder (PTSD). Part of the relief which he seeks in the application is that he be restored to the position of fire investigator. Whether he is entitled to that relief will partly depend on whether the allegations of contravention of the Act are made out. The entitlement to relief will also depend upon the precise nature of his disorder and the way in which it impacts upon the duties of a fire investigator. 3 That latter question is one which the respondent may seek to lead evidence from a psychiatrist. The psychiatrist presumably would be, armed with information about the nature of the duties of a fire investigator. The psychiatrist would investigate the nature of the PTSD suffered by the applicant and provide an opinion as to how the nature of the illness, as it affects the applicant, would impact upon the employment of him as a fire investigator. 4 The applicant at first accepted that he should attend for a consultation with a psychiatrist nominated by the respondent but then later withdrew that consent. 5 The respondent is entitled to call evidence on this issue as it seeks from a psychiatrist and the applicant is obliged to comply with a reasonable request to do so. 6 At present, in view of the refusal of the applicant to respond to that request, the application should be stayed. It is to be expected that if the applicant now does attend such a consultation at the request of the respondent, the respondent will agree to an order that the stay be discharged. In the event that the respondent fails to do so, the matter will return to the Court for an adjudication about whether the stay should then be lifted. 7 In the event that the applicant fails to comply with a reasonable request by the respondent and that non-compliance lasts for an unreasonable amount of time, it will be open to the respondent to apply for the application to be dismissed for want of prosecution. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.