In the February edition of Employment Matters, we reported on the difficulties faced by employers required to manage employees suffering from a non-work related disability. The decision in Button v J Boag and Son Brewing indicated that if an employee’s duties are modified to accommodate their disability, and they are performing the modified duties satisfactorily, it is unfair to dismiss them on the ground that they cannot do the inherent requirements of their original job.

Boags have since successfully appealed against that decision. The case also provides an interesting discussion on the validity of dismissal for breach of workplace policies.

Background

Mr Button had been employed by Boags as a brewery technician since June 2005. He had a hereditary urological condition, and was diagnosed with an abdominal hernia in March 2008. He was advised by a urologist to no longer lift weights above 5kg. Prior to this advice, lifting items of more than 5kg had been a frequent requirement of his position.

Shortly afterwards, Mr Button was placed on restricted duties by Boags and was assisted by a colleague when lifting was required. He performed the restricted duties without incident. In subsequent months he underwent a series of medical examinations at the request of Boags to determine his working capacity. In June 2009, Boags’ parent company Lion Nathan concluded that his incapacity to lift weights greater than 5kg would be permanent, and there was a greater risk of injury to other Boags staff.

On 7 July 2009 Boags decided to dismiss Button because he was no longer able to perform the inherent requirements of his substantive role of brewery technician. This decision was communicated to Mr Button on 4 August. He received a formal letter of termination on 11 August, informing him that the termination would take effect on 11 September.

Importantly, as would later become apparent, Mr Button was charged with a drink driving offence between these dates, on 7 August. All Boags employees are bound by a strict policy prohibiting drink driving.

Initial success for Mr Button

Senior Deputy President Kaufman of FWA upheld Mr Button’s unfair dismissal claim. His Honour found that since Mr Button had been able to work for eight months after being placed on restricted duties without adverse impact on the welfare of other staff, there was no valid reason for his dismissal.  

His Honour also held that the drink driving offence could not be used as a valid reason for Mr Button’s dismissal in the circumstances of his case. While the appropriateness of a strong stance on drink driving being taken by Boags was not questioned, His Honour said that for “all intents and purposes” Button was dismissed on 4 August, prior to the drink driving charge. As such, the charge could not be used as a valid reason for dismissing him.

Boags appealed against both of these findings to a Full Bench of FWA.

Appeal Allowed By FWA

Vice President Lawler, Senior Deputy Vice President O’Callaghan and Commissioner Williams allowed Boags’ appeal.  

The Full Bench agreed with the finding of SDP Kaufman that the fact that Mr Button had continued to satisfactorily perform his modified duties was relevant to a consideration of whether his dismissal was harsh, unjust or unreasonable.

However, they said that this alone was not sufficient to draw a conclusion on the matter. They said that a broader range of circumstances must be considered in determining whether the dismissal was unfair, particularly whether the impact of his decreased work capacity would have constituted an unreasonable burden on Boags or on other employees. They ordered a re-hearing of the claim accordingly.

In relation to the drink driving charge, the Full Bench said that at the time Mr Button was charged with drink driving he was still employed by Boags and was therefore still bound by its drink driving policy. For this reason, the Full Bench members found that the drink driving charge might be a valid reason for terminating his employment.

It was left open, however, for the eventual re-hearing of the claim to determine whether Boags’ reliance on the drink driving charge was harsh, unjust or unreasonable. The Full Bench said that the unusual circumstances surrounding the timing of the offence might warrant a conclusion that dismissal for this particular breach of the policy was harsh.

What the decision means for employers

The initial success of Mr Button’s application sent a message to employers that when an injured employee is redeployed to work on modified duties and performs them satisfactorily, those duties must be assessed in order to establish the ‘inherent requirements’ of the employee’s position.

That was an approach that would have significantly impaired employers’ ability to manage employees who can no longer do the job they were employed to do.

The successful appeal by Boags against this finding has restored the principle that, when assessing an employee’s capacity to perform the inherent requirements of their job, it is their substantive position that has to be considered, rather than their modified duties.

With regard to Mr Button’s dismissal following his drink driving charge, the Full Bench has confirmed that even if an employee is serving out a period of notice, they can still be held to the same standards of behaviour as other employees