A fairly recent (2010) Fair Work ruling showed that employers are able to place injured or ill workers on restricted duties without giving up their right to dismiss them if it becomes clear they are unable to perform the inherent requirements of their job.
Injured workers who cannot perform inherent requirements of the job can be sacked
- Managing ill and injured employees can be a struggle for employers.
- Whilst the broad legal principles are clear, their application is not. For example, when considering whether an injured worker can perform the inherent requirements of their role, does this refer to the requirements of the injured worker’s substantive role, or some modified role the employer has provided?
- A Full Bench of Fair Work Australia recently (2010) overturned an earlier FWA decision, to confirm it is the substantive position or role that must be considered, and not some modified position.
- Where an injured worker has an ongoing inability to perform the inherent requirements of a role, permanent modification of the role is unreasonable, and no viable alternatives for redeployment exist, termination may be justified.
The landmark case
In May 201o, a worker employed by J Boag and Son Brewing Pty for the past three years, was placed on restricted work duties after he had been diagnosed with a hernia. The injured worker also suffered from a bladder problem which he had been born with.
About one year after the incident, the subsequent medical assessments indicated that the injured would need to remain on restricted duties indefinitely. The employer [Boags Brewing] terminated the injured worker’s employment, having determined that he was unable to perform the inherent requirements of his substantive role. They also found that he could not be redeployed elsewhere.
Clayton UTZ lawyers describe in a publication that the appeal full bench found that -at the initial hearing for unfair dismissal- senior deputy president Kaufman had mistakenly determined that the dismissal was unfair because he had mistakenly determined that the injured worker was able to perform his modified role.
The Clayton UTZ paper discusses that “it is the substantive position or role that must be considered, not modified, restricted duties or temporary alternative positions”.
“It was clear that both [the worker's] position and his job had important features that he could no longer perform because of his lifting restriction.
“He was incapable of performing all of the inherent requirements of his job and, on balance, this constituted a valid reason for his dismissal.
“It was [his] full position which had to be examined, not the modified position which he had been performing.”
The decision establishes a useful guiding principle for employers in a similar situation.
This case illustrates that employers may dismiss an injured worker for incapacity to perform the inherent requirements of the job, despite being temporarily able to modify the position. Where an injured worker has an ongoing inability to perform the inherent requirements of a role, permanent modification of the role is unreasonable, and no viable alternatives for redeployment exist, termination may be justified.
You can read the appeal’s decision and case here: Mr Allan John Button v J Boag & Son Brewing Pty Ltd (2010) FWA 148 (13 January 2010)
If a person with a disability is able to carry out the essential activities (inherent requirements) of a job, the law says that they must be given the same opportunity to do that job as anyone else. The inherent requirements of a job are:
- the fundamental tasks that define a job or category of jobs and that must be carried out in order to get the job done
- not all of the requirements of a job
- about achieving results rather than the means for achieving a result
Only the inherent requirements of a job should be considered in determining a person’s ability to do the job. They may include the ability to perform the tasks or functions which are a necessary part of the job and to work safely. A person who cannot work safely does not meet the inherent requirements of the job.
[post inserted by T on behalf of WCV]