Michael Harte v Forbes Australia Pty Limited t/as Hunt
Boilers  FWA 6948
Mr Harte's employment was terminated by Forbes Australia Pty
Limited (Forbes) on the basis he was unable to perform the inherent
requirements of his job. Mr Harte sought relief under s394 of the
Fair Work Act 2009 (Cth) on the basis of unfair
Mr Harte seriously injured his foot at work in December 2004.
Upon returning to work in August 2006, Mr Harte performed office
based duties before resuming his technical role. In November 2007
Mr Harte was promoted to a service technician, level 2, and by
December he was promoted to the role of Service Supervisor
– Mechanical (SSM).
In mid 2010 Mr Harte had surgery to remove a plate from his
foot. After surgery Mr Harte settled a permanent disability claim
as he believed he would never return to his pre- injury status.
Forbes was also concerned Mr Harte would not return to his
pre-injury duties so sought comment from his treating doctors. Upon
receiving that advice, Mr Harte was offered, but declined, two
promotions. Forbes then gave Mr Harte five weeks notice in April
2011. Notice was given on the basis that Mr Harte could no longer
perform the inherent requirements of his job.
In deciding the case, Commissioner Bissett cited the matter of
J Boag and Son Brewing Pty Ltd v Button 195 IR 292 in
which the full bench from Fair Work Australia held:
'[w]hen an employer relies upon an employee's
incapacity to perform the inherent requirements of [their] 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.'
Comissioner Bissett was satisfied that an inability to perform
the inherent requirements of a position will generally provide a
valid reason for dismissal.
Upon hearing submissions, Commissioner Bissett was satisfied Mr
Harte's capacity should be assessed against the SSM role.
However, it should be noted that Mr Harte returned to that role on
Nonetheless the return to work plan indicated Mr Harte's
goal was to spend two and a half days performing on site duties,
subject to any restrictions. Although that was his goal, Mr Harte,
as a consequence of his injuries, had to avoid numerous activities
including heavy lifting and working on ladders or uneven surfaces.
Those restrictions were confirmed by Mr Harte's treating
There was then a dispute as to what was required of Mr Harte as
a SSM, specifically, the amount of on site, or chargeable, work he
was required to perform. That work was of a physical nature and
presented the greatest difficulty to Mr Harte.
It was ultimately accepted that as an SSM Mr Harte would be
required to perform some chargeable work, although no determination
was made as to the extent of that work.
Management gave evidence that they expressed concerns over Mr
Harte's safety when he was working as an SSM. That was
corroborated by his treating doctors.
Commissioner Bissett accepted that while Mr Harte had attempted
to return to work doing some chargeable work, he could not meet the
requirements of Forbes in that regard in respect of the SSM
Mr Harte's dismissal was determined to have been reasonable.
Emphasis was placed on the fact that Mr Harte had been offered two
alternative positions, which he declined, and been given ample
opportunity to respond to the issues raised by Forbes about his
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