Did you know that the Australian Industrial Relations Commission has ruled Injured Workers who can perform some but not all of their inherent job requirements after an injury can have their employment validly terminated.
Injured workers who can do some but not all inherent job requirements can be sacked
A legal case (2008) heard at the IRC involved a Victorian injured worker who was employed as a store person in a distribution centre for Coles.
The injured worker’s primary role was forklift driving but he was often also required to get down from the forklift and move things by hand.
In March 2005 the worker had injured his back while trying to open a jammed roller door.
At the Hearing, Senior Deputy President Brian Lacy confirmed that the injured worker did not have the capacity to perform the inherent requirements of his position, and said that there was a valid reason for his termination.
At the time of the injury the injured worker was employed under a 2002 Enterprise Agreement as a Store Person Grade 3. In November 2005 this was superseded by a new enterprise agreement, and his job description changed to team member.
In October 2006, once the 52 weeks (1 year) of modified duties required by the Victorian Accident Compensation Act 1985 had passed, Coles withdrew his modified duties.
In April 2007 Coles also arranged for a doctor to examine him.
Despite this opinion, Coles said that he [the injured worker] would be unable to perform the inherent requirements of his position. Coles invited him to respond to this assessment.
The injured worker asked (read: begged) to be redeployed but was told that there were no redeployment opportunities. Coles terminated his employment in September 2007.
At the hearing Senior Deputy President Lacy accepted that the worker’s job requirements, under both the 2002 and the 2005 enterprise agreements, involved not only forklift driving, but also a range of manual handling activities which could involve lifting, twisting, bending or squatting.
“Crucially,” Senior Deputy President Lacy said, the worker “agreed that the only task that he could perform that did not have a very real potential to put him at risk of breaching the limitations on his capacity, is forklift driving.
In determining whether the termination was harsh, unjust or unreasonable Senior Deputy President Lacy said that there was a valid reason for the termination, the injured worker was notified of that reason and was given ample opportunity to respond to the reasons…. (yeah, as if that would make any difference!)
Deputy President said that sending the worker home in October 2006 and not permitting him to work between then and August 2007 did not affect his prospects of continuing employment with Coles.
Appropriate recognition must be given to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment, he said.
The worker did not have the capacity to perform the inherent requirements of his position, the Deputy President said. There was a valid reason for the termination, and the termination was not harsh, unjust or unreasonable.
“I must refuse [the worker’s] claim for relief and dismiss the application.”
You can read the full case here:Francis Tham v Coles Group Supply Chain Pty Limited  AIRC 110 (9 May 2008)
And… yep, as many injured workers have experienced first hand, this is the sad and harsh reality! Once injured at work, one becomes an unwanted “liability”, discarded on the scrap heap, even though most injured workers are desperate to continue work after an injury. The problem is, as evidenced by this case, that it is most often the employer(s) who refuse us to return to work!
Now what kind of a law is this? A law that allows employers to sack any injured worker, rather than to help an injured worker with a more “suitable” (and most often readily available) position! And injured workers are routinely labelled as “lazy” free holiday seekers, yeah, right…
Shame on Coles we say.
And SHAME on so many many more employers….
[Post dictated by workcovervictim and manually entered on behalf of WCV]
View our resource page “Inherent Requirements”
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