Rebekah Fryer, Associate
The Australian Industrial Relations Commission recently upheld a decision by Coles to terminate an employee who was unable to perform the inherent requirements of his position. Medical evidence was presented that demonstrated that the employee was unable to perform all the requirements of his position. In reaching its decision, the AIRC found that Coles had followed a fair process in terminating the employee.
Mr Tham was employed as a store person with Coles from June 2000. His main duty was forklift driving. In March 2005 he suffered a back injury and was absent for two weeks. When Mr Tham returned to work he was placed on restricted duties until July 2005, after which time he performed modified duties, including forklift driving and limited manual handling work.
In November 2005 a new Enterprise Bargaining Agreement began operating. It changed the classification structure of the position of store person and changed the position title to team member. The team member position included duties of forklift driving, as well as other duties not previously performed by a store person.
At the end of 52 weeks of modified duties, Mr Tham was sent home pending further medical examination. Medical assessments revealed that he was capable of working full time but subject to certain restrictions. Mr Tham met with representatives of Coles who told him that, on the basis of the medical evidence, they believed that he was unable to perform the inherent requirements of the position of team member.
Mr Tham was provided with an opportunity to respond, as well as obtain his own medical evidence. Mr Tham indicated that he wished to be re-employed to another position. Coles told him that they had investigated this option but there were no other suitable positions for him. Mr Tham's employment was terminated from 5 September 2007.
Mr Tham lodged an application for unfair termination in the Australian Industrial Relations Commission (AIRC). He argued that there was no valid reason for his dismissal because he was able to perform the role for which he was engaged, being a forklift driver. He also said he could undertake a range of, but not all, the other tasks of a team member. Mr Tham also argued that his injury did not prevent him from performing the inherent requirement of his position, and that Coles had discriminated against him in requiring him to perform manual handling tasks without that restriction.
In response, Coles said that all of the medical evidence indicated Mr Tham had a permanent inability to carry out the full range of duties of a team member and was unable to fulfil his pre-injury duties as a store person. Coles argued that it was not required to provide an injured employee with modified duties on an ongoing basis and that it could not permit Mr Tham to work beyond the scope of medical recommendations. Coles said that if Mr Tham believed that his position was that of a store person, or that his position included duties that were limited to that of a forklift driver, he was terminated for operational reasons and therefore unable to bring an unfair termination claim.
The AIRC decided that there was a valid reason for Mr Tham's termination.
The AIRC considered the position Mr Tham held and the requirements of that position but found that Mr Tham had no capacity to perform these requirements and this was supported by medical evidence. The AIRC also noted that Mr Tham agreed that the only task that he could perform, without breaching his medical restrictions, was forklift driving and that the team member position required more.
The AIRC also examined the provisions of the EBA, in particular the clause that provided an employee must "perform work for which he or she is engaged, as well as other lawful duties and responsibilities". It found that this clause permitted Coles to request Mr Tham to perform other duties as required but his medical restrictions prevented him from fulfilling all the duties required.
In terms of procedure, Mr Tham was notified of the reason for his termination and given an opportunity to respond. The AIRC also said there was no discrimination against Mr Tham as he was unable to carry out the requirements of his position.
Lessons for Employers
This case considers the practical implications of the "inherent requirements" of a position. While Mr Tham argued that he could undertake the main requirements of his position, he was unable to perform all of the duties inherent requirements of his position.
It also highlights the importance of the words used in an employment agreement. The EBA in this case contained a clause which allowed Coles to direct the employee to perform duties other than forklift driving. It was this clause that Coles relied on. It is important to review employment contracts and other industrial instruments to ensure they contain an ability for the employer to direct an employee to carry out duties other than their core duties.
It is also important to remember that, while you might have a valid reason to terminate an employee, you must also follow a fair process when you terminate an employee. For more information see Francis Tham Coles Group Supply Chain Pty Ltd  AIRC 110 [9th May 2008].
Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.