One of the questions most frequently asked by employers is how to best manage employees suffering from a non-work related injury or illness, especially when it appears as though they can no longer perform the inherent requirements of their position.

The recent decision of Button v J Boag & Son Brewing Pty Ltd [2010] FWA 148 provides a useful insight into what Fair Work Australia (FWA) will consider in determining whether a dismissal on the grounds of not meeting the inherent requirement of the position is harsh, unjust or unreasonable.

Facts

Mr Button worked for J Boag & Son Brewing in Launceston as a brewery technician/operator.

He had been diagnosed with a hereditary urological condition at an early age, but with the assistance of an iliel conduit and a urinary bag, had successfully been able to manage his condition.

In March 2008, Mr Button developed an abdominal hernia. His treating doctor strongly advised him to avoid any heavy lifting whilst at work, especially anything in excess of 5kg.

Boags’ Health and Safety Coordinator for Tasmania, Ms Williams, arranged for an OHS consultant to assess Mr Button’s fitness to perform his duties. The assessment found, amongst other things, that he should avoid strenuous activity including lifting above 5kg, and recommended that these restrictions should continue until he underwent an operation to repair the hernia.

Mr Button was then placed on restricted duties. Things at work largely continued as they had been, with Mr Button only requiring a colleague to help him with the parts of his job that required lifting.

Prior to April 2009, Ms Williams sought a report from Mr Button’s treating specialist. The specialist noted that Mr Button would not be able to lift more than 5kg in his occupation and said this was an indefinite restriction.

Following this report, Mr Turner, Boags’ Health & Safety Leader arranged, unbeknown to Mr Button, for an occupational therapist to assess the physical requirements of his position and determine if he could safely perform his duties. Interestingly, Mr Button gave evidence, which was accepted by FWA, that Boags’ management had told him they sought this assessment because Boags’ insurer had advised that it was not prepared to accept the risk of liability for him.

The occupational therapist assessed Mr Button’s current duties as being the normal, non-modified duties of his position. FWA noted that there was nothing in the occupational therapist’s report to indicate that she was even aware that Mr Button had been performing his job, with the help of team members, for the best part of a year, whilst observing his restrictions. She did not speak to Mr Button, nor did she assess his physical abilities during the assessment. She did however have access to his prior medical reports.

The occupational therapist’s report concluded that Mr Button was not able to perform his role safely, and that he could not be redeployed within Boags as his transferable skills did not match the requirements of other roles within the company.

Mr Button was dismissed on the basis that he could not perform the inherent requirements of his position. He then brought an unfair dismissal action against Boags.

The Proceedings

In considering whether Mr Button’s termination was harsh, unjust or unreasonable, Senior Deputy President Kaufman said:

  • Almost universally, if a person cannot perform the inherent requirements of their position, there will be a valid reason for termination of employment simply because they are unable to perform the role for which the employment contract provides. However, this case was unusual.
  • Boags had failed to explain why, after Mr Button had been satisfactorily performing his duties with the assistance of colleagues, it sought a further medical assessment of his capacity without informing him.
  • The inherent requirements of Mr Button’s position, as modified, did not necessitate that he perform work beyond his restrictions. Mr Button had been satisfactorily performing his work with the willing assistance of his team members. Nothing changed in that regard. Accordingly, there could be no valid reason for the termination based on his capacity.
  • Mr Button’s dismissal was harsh, unjust and unreasonable.

Boags was ordered to reinstate Mr Button to his modified position and to compensate him for the pay he had lost as a result of the unfair dismissal.

This decision is currently on appeal before Vice President Lawler. We await the Vice President’s decision and will report it in a later edition.

Lessons for Employers

This case provides employers with a clear message that in the event that an injured employee is redeployed to work on modified duties and performs them satisfactorily, it is those duties that may become the basis of any future “inherent requirements” determination. Employers need to have this in the forefront of their minds when determining whether to terminate the employment of an employee on restricted duties to ensure that the termination does not result in a successful unfair dismissal application or discrimination complaint.