In brief

  • Employers are often under pressure to vary working hours to accommodate the needs of injured employees.
  • How far must an employer go to meet the needs of an employee? 
  • Two recent decisions from Fair Work Australia and the Queensland Civil and Administrative Tribunal have considered whether an employer must alter shift arrangements so that an employee can perform the inherent requirements of their position.
  • The decisions demonstrate that employers are not obliged to permanently adapt shift arrangements for indefinitely injured workers, and in circumstances where redeployment is not a viable option, termination may be justified.

Employers are often tackling what to do where employees request varied working hours or shift arrangements in circumstances where they have an injury.

There have been two recent decisions which provide guidance on the obligation to accommodate these types of requests.

Mitchell v Coles Group Supply Chain Pty Ltd T/A Coles Liquor Group1

Facts

In this case, an employee had been working for Coles under restricted and alternative duties from March to December 2009 under a return to work plan due to a back injury. The employee was employed as ‘Team Member Level 2’ under the Coles Liquor Distribution Centre WA Agreement 2009. The duties of this role required the performance of ‘one or more’ of a number of tasks, which including stock selection (picking).

As a result of his injury, the employee was unable to perform his picking tasks and performed alternative duties on a temporary basis.

In December 2009, Coles decided that the alternative duties could no longer be provided.

The employee was directed not to attend for work and in August 2010 the employee’s employment was terminated by Coles on the basis that he could no longer perform the inherent requirements of the job.

Coles contended that one of the essential functions of the employee’s role was picking, with an expectation that 1000–1200 cartons would be picked per day. Coles asserted that the employee could not pick that many cartons and was unlikely to be able to do so within a reasonable period of time (if ever). Coles provided medical evidence to support this contention.

The employee argued that the picking duties were not the only duties he could be required to perform. The employee also suggested that he could perform picking duties provided those picking duties were limited in duration on any day. It is not clear whether a request in this manner was ever made directly of Coles.

Decision

Deputy President McCarthy held that even though the employee was capable of performing other tasks within his classification, Coles was within its rights to require the employee to perform the task of picking.

DP McCarthy commented that Coles had organised its operations in a manner which required any employees within the same classification as the employee concerned to be able to pick for extended periods of time. Coles was not required to vary its operations to provide picking duties for a limited duration. As the employee was not able to be safely allocated work in this manner, Coles had a valid reason for the termination of his employment.

DP McCarthy ultimately held that the termination was harsh, unjust or unreasonable as a result of the manner in which the employee was terminated. However this finding was not as a result of Coles’ failing to accommodate the employee’s injury by providing particular duties for a lesser period of time than for other employees.

Lankheet v State of Queensland2

Facts

The employee in this case was a custodial correctional officer employed at Woodford Correctional Centre by Queensland Corrective Services (QCS). The employee had a medical condition which prevented him from working night shifts.

On 24 January 2006 the Queensland Industrial Relations Commission approved QCS’ decision to implement a main rotational roster at Woodford, and from 16 October 2006, custodial correctional officers at Woodford were placed on a rotational roster which included night shifts.

The employee raised concerns with QCS about being required to work night shifts and QCS responded by offering a custodial correctional officer position at Brisbane courts. The employee rejected that offer (the position did not attract a shift allowance).

A medical assessment confirmed that the employee should not work night shifts.

The employee was ultimately transferred, with his agreement, to a day shift position on 11 February 2008.

On 30 June 2008, the employee lodged a discrimination claim in the Queensland Civil and Administrative Tribunal alleging that QCS had discriminated against him on the grounds of impairment. The basis for the employee’s claim was QCS had moved him off the main roster. The employee contended that he should remain on the main roster without the requirement to work night shifts.

Decision

Senior Member Endicott held that the requirement for the employee to work on a full rotational roster (which included night shifts) was reasonable and that the change to his position as a result of being unable to work night shifts was not indirect discrimination under the Queensland Anti-Discrimination Act 1991.

SM Endicott held that what the employee had requested from QCS would amount to an adjustment in his working conditions, which QCS was not required to agree to in these circumstances.

SM Endicott found that ‘it is an inherent requirement of the role of a custodial correctional officer working at Woodford that the officer works night shifts if that officer works on the main rotational roster’. It was not relevant that employees were required to work on average only two night shifts per roster.

SM Endicott noted that there was no clear request by the employee for a permanent variation of duties, or a refusal by QCS to allow this. It was found that although the employee had intended to make this request, QCS did not interpret any of the correspondence exchanged as a request for a permanent roster variation.

The evidence of QCS that acceding to the request would severely disrupt industrial harmony and would compromise the integrity of the roster was accepted by the Tribunal: ‘principles of industrial equity and fairness militate against permitting permanent variations to the rotational roster for an individual staff member’. The fact that employees regularly changed shifts by agreement did not mean that QCS must permit a permanent shift change by an individual employee.

SM Endicott found QCS was not required to change the duties and inherent requirements of the custodial correctional officer role on the main roster to enable the employee to continue in it.

Implications for employers

These cases illustrate to employers that it can be lawful and reasonable to resist an employee’s request to change working hours (such as by providing reduced hours for a particular task, or providing different shift arrangements) to accommodate an injury. However, employers must still carefully consider the circumstances of each individual case.