Inherent requirements

Fitness for work – the concepts of inherent requirements and reasonable (work) adjustments

The Fair Work Act prohibits the dismissal of an employee where the reason is due to the worker’s temporary absence from work because of personal illness or injury.

What are the inherent requirements of a position (job)?

If a person with a disability (or an impaired injured worker) 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, an injured or disabled 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.

inherent-requirements-of-a-job1Only 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).

Medical evidence

inherent-requirements-of-a-job2Assessing fitness to work

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Some Fair Work Commission decisions

  • Ms V v Ambulance Victoria [2012] FWAFB 1616

Dismissal was unfair – “no clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners”)

  • J Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022

Inherent requirements – “it is the substantive position or role of the employee that must be considered and not some
modified, restricted duties or temporary alternative position that must be considered”

Reasonable adjustments

 

inherent-requirements-job-reasonable-adjustment1

The Anti-discrimination law states that an employer/boss must take reasonable steps to help the injured, ill or recovering worker back into employment.

One such an option is  to make “reasonable adjustments” in order to help the injured/ill worker continue in their job. What is “reasonable” does however depend on a number of factors including the nature of the disability, the employer’s financial circumstances and workforce size, and the affordability of the alterations.Saying that most employers can and should make reasonable adjustments, for example offering the injured worker reasonable ergonomic tools to do their job. Things include altering a work station/desk, giving the injured worker a different chair, provide dictation software, hands-free phone, under-desk keyboard tray, footstool etc.

Also, according to the Federal Disability Discrimination Act, an employer/boss must make reasonable adjustments to accommodate a worker with a disability unless it would cause the employer “unjustifiable hardship.”

So…a general protections claim, an unfair dismissal, or a discrimination claim can be launched against any employer/boss who acts harshly to sack an injured worker who is on some form of extended leave because of their injury or illness. …And that’s what you should tell your boss/employer!

Disability Discrimination Act 1992 (Cth)

s 5(2): “For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

  • a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
  • b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.”

Limits on reasonable adjustments

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 Reasonable adjustments do not include:

  • Changing the inherent requirements of the job
  • Maintaining a job which would otherwise be altered or abolished
  • Assigning performance of some inherent requirements to another worker
  • Creation of a different job
  • Promotion or transfer to a different job

Reasonable adjustments: some cases

  • Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176

No discrimination – worker not hired after failing pre-employment medical examination

  • Rees v Australian Agency for International Development (1999) EOC 93-005

Offer of promotion withdrawn due to temporary impairment – adjustments could have been made which did not involve unjustifiable hardship – discrimination

Reasonable adjustments – some practical tips for injured workers’ employers

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Protections for the injured worker

inherent-requirements-of-a-job6

A  general protections claim, an unfair dismissal, or a discrimination claim can be launched against any employer/boss who acts harshly to sack an injured worker who is on some form of extended leave because of their injury or illness. …And that’s what you should tell your boss/employer.

Big risks for injured workers’ employers

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Summary about inherent requirements

  • Inherent requirements = essential requirements without which the position (job) would be a different position (job)
  • it is the substantive position or role that must be considered, not modified, restricted duties or temporary alternative positions
  • Assessing fitness for work involves balancing the inherent requirements with the available medical evidence
  • An employer must make reasonable adjustments to the workplace or the role if to do so would assist the injured worker being able to perform the inherent requirements of the job
  • Adjustments are not necessary where making them would impose unjustifiable hardship on the employer
  • Key risks for employers include unfair dismissal, discrimination and adverse action claims
  • No “one size fits all” approach!

 

Some useful published posts which include inherent requirements of a position

  • It’s not acceptable to treat injured workers as faulty parts that can be replaced

It is illegal to terminate an injured or ill worker who is on temporary leave to recover. Under the Fair Work Act 2009, if an injured/ill worker is temporarily absent from work in order to recover, your boss (employer) generally has no right at all to sack you. An injured/ill worker who is sacked in this situation can lodge a general protections claim (Section 352) with Fair Work Commission. If -at the end of a period of temporary absence for illness or injury- workers are unable to do the job they were doing before their injury/illness, their boss/employer has to exhaust a number of alternatives before they can lawfully dismiss them on the basis that they cannot perform what are called “the inherent requirements” of their job…Read article

  • Terminating psychologically injured workers – challenges

Employers must balance various considerations and avoid assumptions, speculation and urban myth, when dealing with a psychologically injured worker.

A fairly recent decision (Applicant v Respondent [2013] FWC 7421) of the Fair Work Commission (FWC) has highlighted that there are significant challenges and risks for employers when they seek to terminate psychologically injured workers.Read article

  • Workers on long term sick leave can be dismissed

This article covers 3 recent Fair Work decisions highlight that employers may terminate workers who are on long term sick leave, provided that procedural fairness is afforded to the worker concerned. Employers may also have a valid reason to request further medical information particularly where medical certificates provide scant details.Read article

  • Employers need to carefully follow termination procedures

A Fair Work unfair dismissal case highlights that employers need to be aware of the importance of following process and procedure when dismissing an (injured) employee, even where there is, allegedly, a valid reason for dismissal. Whilst there may be a valid reason for dismissal -in this case of an injured worker- can still be considered harsh, unjust and unreasonable if proper termination procedures are not followed.Read article

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

A Fair Work landmark 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. This ruling showed that it is the substantive position or role that must be considered, not modified, restricted duties or temporary alternative positions. Read article

  • Injured workers who can do some but not all inherent job requirements can be sacked

A Victorian legal case. Read article

  • IMEs are not writing reports outlining job restrictions & reasonable adjustments requirements

Doctors’ reports—particularly IME reports— on injured workers are all too often painfully lacking any understanding of the injured worker’s workplace or the inherent requirements of injured workers’ job/position. This often results in the assessment of a “fit-for-work” injured worker, without, for example, any consideration(s) to restrictions or reasonable adjustments that should be made in the workplace. Read article

 

 

 

 

 

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