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 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)

 

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 comprehensive fact sheet (Aus Gov).

 

 [post inserted by T on behalf of WCV]

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

 

 

 



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3 Responses to “Injured workers who cannot perform inherent requirements of the job can be sacked”

  1. “R” kindly sent in the “Wombudsman” Report for workcover SA, covering employment injured workers under the South Australian workers comp legislation, which we have published under the “state by state” resources under SA (scroll to bottom of page)

    Thank you “R”, much appreciated!

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  2. 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 but not at the pre injury state as employed at from the begining within the same field being hospitality.

    So now the Employer has the rights to refuse the retrained worker to return to the same company with training in the same
    field/hospitality although in another area?.Is this a common practice or is this a attempt to bluntly say my eagerness and willing to be trained to return to work even if my injuries are as stated by the IME unemployable but should be considered for another roll be deemed unjust.After all I’m trying to get back to a some what normal life even if not able to work in the pre injury job description?.Allianz stated this in a letter to me that I’m no longer wanted by my employer.So my training was in vein I have no qualifications outside the proffesion that I worked in for over twenty years,now being trained in the same field but a different area and still denied by the company for other areas of work.Allianz have spent time,money,and the acknowledgment from me even if the IME suggested me unworthy to go back in any capacity.Basically I’m DOOMED.

    MY only option now is to continue going to my doctor receiving my medical certificate every 28 days,taking my medication,sitting in my bum and contemplating if my life is worth living?. This just goes to show even with all things considered going against the IME recomadations and willing to be retrained but only to find out my Employer does not require my services even though I’m being re trained,they will not except me.I guess my question is should I sue my employer or do I have the rights to sue my employer?,on the basis that I have been retrained to go back within a different job description.Oh by the way I never resigned other wise I would not be still receiving weekly payments.

    Could some one please let me know what I should do?. My own opinion obviously does not matter either to my Employer or even Allianz.Even with the employer paying my wages,and higher premiums,which I’m gladly happy to restart work in a different role.

    Kind regards
    Al Workcover Victim
    Y

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    Al Workcover victim July 16, 2012 at 9:34 am
  3. 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 for a number of years, however with medical restrictions. She retrained and managed to obtain a different position within the company. Unfortunately her injury kept worsening mainly because her employer did not look after her and never provided her with support in the workplace after the injury,which was requested many times by her surgeon. This resulted in her to need to undergo at least yearly major reconstructive surgery. After yet another of those surgeries and although she was given a certificate of capacity with the very same physical restrictions as before (the surgery) she was sacked. The employer stated in the termination letter that they has no duty of care anymore,the 12 months (VIC) past the injury long gone and that the injured worker has been on restricted duties ever since. It therefore concluded that they could termninate her employment (and were not obliged to find her any other alternate employment) unless she could obtain an unrestricted certificate of capacity (which was impossible).

    We do believe, however, that if your employer no longer wants you and that you are on workcover and are found to have a capacity for work (however small), in VIC, your insurance will put you under the NES scheme, that is the New Employer Scheme. For that they will initially refer you to a vocational and/or rehab service provider who will then assist you finding a new job. Until you have a new job, your weekly payments will continue (to a certain limit – see legislation or online claims manual VIC).
    Also see our FAQ page ” how does workcover affect my job

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    workcovervictim3 July 16, 2012 at 1:06 pm