September 2010

Employment law: Is it fair to dismiss an injured worker for failed rehabilitation?

Those employers who take their workers compensation rehabilitation obligations seriously often wonder if it’s fair to dismiss a worker after failed rehabilitation. But how much rehabilitation is enough? What about suitable duties? Reasonable adjustment?

A recent appeal decision involving a brewery worker (J Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWA FWAFB 4022) provides useful guidance on all these issues and more. Although the case did not involve a workers compensation claim, Boags pursued a familiar rehabilitation path.

Mr Button was employed as a brewery technician by Boags Brewery from 2005 until his dismissal in September 2009. He was responsible for the running and maintenance of equipment, and the disassembly and reassembly of machinery on occasions.

These duties involved lifting, pushing and pulling of weights of more than 5 kg, and sometimes assuming awkward positions. Mr Button had a congenital condition which required surgery to replace a drain roughly every ten years.

Arising from his condition Mr Button developed an abdominal hernia and was advised by an urologist against lifting anything over 5kg. He was put on restricted duties and Boags then organised an occupational assessment. The report confirmed that Mr Button should avoid strenuous activity like kneeling, squatting, running, jumping, lifting from the floor, and lifting more than 5kg. Mr Button remained on restricted duties pending further assessment.

In March 2009 Boags requested a medical report from Mr Button’s treating surgeon who advised that Mr Button’s lifting restrictions were to be regarded as indefinite. Boags was under the impression that an operation would have allowed Mr Button to return to his full duties, but the surgeon advised against surgery.

Boags organised another occupational therapist to assess the physical requirements of Mr Button’s position and to determine if Mr Button was able to safely perform his appointed duties. The report concluded that as Mr Button’s restrictions were likely to be permanent he could not continue to safely perform his duties. This assessment was based on the normal, non-modified duties of the position, rather than the restricted duties Mr Button had been performing for over a year albeit with the help of his colleagues.

On 7 July 2009 Boags decided Mr Button could not perform the inherent requirements of his job; and as he was unable to be redeployed his employment was terminated.

Mr Button lodged an unfair dismissal claim.

Was the dismissal unfair?

At first instance Senior Deputy President Kaufman found in favour of Mr Button and concluded that Boags had altered the inherent requirements when it organised for assistance to be provided to Mr Button as needed. Mr Button had continued to work these modified inherent requirements in a satisfactory manner with his restrictions and the assistance of his team mates.

For that reason Senior Deputy President found that there was no valid reason for the termination based on his inability to perform the inherent requirements of his job.

On appeal

On appeal the Full Bench concluded that Senior Deputy President Kaufman had fallen into error when he considered the inherent requirements of the restricted duties position rather than the substantive position.

The Full Bench said:

"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 of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered"

The notion of "inherent" was considered by the High Court in X v Commonwealth [1999] HCA 63, a case involving a soldier who was discharged because of his HIV status. Inherent requirements are those that are essential to the actual performance of the position as opposed to requirements that may be found to be peripheral.

These principles were refined in Qantas Airways Ltd v Christie [1998] HCA 18, (a case involving age-based retirement of 747 pilots). What is required is an examination of the tasks that need to be performed for that particular position. It is the capacity to perform those tasks which is an inherent requirement of that position. This can be done by asking "whether the position would be essentially the same if that requirement were dispensed with".

In determining whether Mr Button was carrying out the inherent requirements of his position the Full Bench looked at the original position and not the modified position. The Full Bench found that Mr Button’s original position had elements that he could not perform because of his inability to lift over 5kg. This incapacity to perform the inherent requirements of his job constituted a valid reason for his dismissal.

Further it was accepted that even with the restrictions in place Mr Button was not able to perform the requirements of the position. The employer will only be required to make reasonable adjustment if doing so allows the person to perform the inherent requirements of their substantive position. There is no requirement to carry an employee who cannot meet the inherent requirements even after reasonable adjustment.

What does this mean for employers?

Employers who modify duties to accommodate an injured or sick employee are not to be taken to be altering the specified substantive duties of the role. Although the Full Bench has clarified the law, employers should be careful to ensure workers are not allowed to believe that restricted duties have become their new duties. Once rehabilitation is exhausted, any restrictions or reasonable adjustment should be directed to allowing the worker to perform their full duties. If that goal can not be achieved then dismissal may be a fair option.

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