In brief

  • Managing ill and injured employees can be a struggle for employers.
  • Whilst the broad legal principles are clear, their application is not. For example, when considering whether an employee can perform the inherent requirements of their role, does this refer to the requirements of the employee’s substantive role, or some modified role the employer has provided?
  • A Full Bench of Fair Work Australia recently overturned an earlier FWA decision, to confirm it is the substantive position or role that must be considered, and not some modified position.
  • Where an employee has an ongoing inability to perform the inherent requirements of a role, permanent modification of the role is unreasonable, and no viable alternatives for redeployment exist, termination may be justified.

Introduction

A Full Bench of Fair Work Australia (FWA) has overturned a decision at first instance to reinstate an employee who was dismissed for incapacity to perform the inherent requirements of his role. This decision is of significance for employers as it clarifies the meaning of ‘inherent requirements’ and reinforces that the requirements to be considered are the requirements of the employee’s pre-injury role, not the requirements of employment modified to meet the needs of the injured employee.

Facts

The employee was employed as a Brewery technician with J Boag Son and Brewing Pty Ltd (Boags). In about March 2008, the employee developed a hernia and was advised not to lift weights above 5kg, to avoid kneeling, squatting, running, jumping or lifting from floor level. He was placed on restricted duties at work to ensure that this medical advice was adhered to. This restriction meant that, amongst other things, he was unable to lift boxes of labels, and required assistance from others in his team

His employer was advised by the employee’s treating surgeon that these restrictions were indefinite and would be ongoing.

The employer concluded that it was unable to accommodate the employee’s restrictions on an indefinite basis because many of the employee’s tasks involved tasks that were covered by his restrictions. The employee’s inability to perform these tasks meant that other staff who had been assisting him were at risk of ‘overloading’ or repetitive strain injuries. Further, redeployment was impossible without further training.

The employee’s employment was terminated on notice.

Decision

FWA at first instance found that there was no valid reason for his dismissal. Senior Deputy President Kaufman held that the employee was able to perform and did perform the inherent requirements of the job because the employer had accommodated the employee’s restrictions and he had worked to these requirements for eight months. The Senior Deputy President took into account steps taken by his team members to accommodate his restrictions, and found that there was no adverse impact on the safety or welfare of the team. Reinstatement of the employee was ordered.

Full Bench

The employer appealed the decision, and sought to rely on High Court authority on the meaning of inherent requirements of the job. The Full Bench held that when an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role that must be considered and not some modified, restricted duties or temporary alternative positive.

The Full Bench was of the view that it was clear that the employee could not perform important features of his role because of his lifting restriction, and this constituted a valid reason for dismissal. Further, the Full Bench disagreed with Senior Deputy President Kaufman’s decision that the termination was harsh.

Permission to appeal was granted and the matter was referred to Vice President Lawler for re-hearing.

Implications for employers

This case illustrates to employers that they may dismiss an employee for incapacity to perform the inherent requirements of the job, despite being temporarily able to modify the position. Where an employee has an ongoing inability to perform the inherent requirements of a role, permanent modification of the role is unreasonable, and no viable alternatives for redeployment exist, termination may be justified.

This decision is also a reminder for employers to be clear about the way in which modified roles are provided to employees, and the way in which they are described. It must be clear that the modified role is temporary.

Freehills acted for Boags in this matter.