Injured workers who cannot perform inherent requirements of the job can be sacked

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.

The injured worker subsequently applied to Fair Work Australia for an unfair dismissal. Senior Deputy Kaufman ordered his reinstatement at the hearing. However, as is common, an appeal was lodged by the employer and at the appeal hearing a full bench unfortunately found that the injured worker’s dismissal was valid.

Clayton UTZ lawyers describe in a [popup=’http://www.claytonutz.com/publications/news/201008/06/unfair_dismissal_balancing_employer_and_employee_rights.page ‘]publication[/popup] 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: [popup url=’ http://www.fwa.gov.au/decisionssigned/html/2010fwa148.htm’]Mr Allan John Button v J Boag & Son Brewing Pty Ltd (2010) FWA 148 (13 January 2010)[/popup]

 

Inherent requirements

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
For example, a worker might be required to take shorthand but is unable to do so because of a physical disability. In these circumstances, the worker might still be able to get the job done by taking messages on a Dictaphone and then transcribing these messages. Taking shorthand is therefore not an inherent requirement of the job because the job can be done another way. It would, therefore, be unlawful to refuse to give that person the job simply on the grounds of their inability to take shorthand.
Many employers will terminate injured workers under the FALSE pretense that they are “unable to undertake the inherent requirements of the job” – don’t be fooled!

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.

More information about the “inherent requirements of a job” can be found on the Australian Human Rights Commission website. Also see the interesting and [popup url=’http://pubsites.uws.edu.au/ndco/pdf/INFO%20sheet%205%20-%20Definitions%20of%20Inherent%20Requirements%20-%207%20Nov%2008.pdf ‘]comprehensive fact sheet[/popup] (Aus Gov).

 

 [post inserted by T on behalf of WCV]

Shortlink: http://wp.me/p1MA9G-2xZ

 

 

 

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workcovervictim3
Guest
Dear Al The employer where you had your original injury only has a “duty of care” for you for a limited period of time. For example in Victoria this is 12 months, in NSW this is 6 months from the date of injury. So for those 12 or 6 months the employer has to provide the injured worker with “suitable” or alternative duties. After that time, they have no obligation whatsoever to keep an injured worker on, or to employ a retrained or rehabilitated injured worker. For example, a seriously injured mate of mine had been working after her injury… Read more »
Al Workcover victim
Guest
Hi to all It has come to my attention after a recent quistuionnnaire by my case manager to my employer,”is there a suitable job for your injured worker after given adiquit training to return to your company with out him/her doing the same duties pre injury?”.The Employer replies “no there is no position available for this employee within our company nor can we accommodate in any other working criteria what so ever.Mmm is this not another way of denying the employee with a return to work for the company even if the employee is being trained in the same industry… Read more »