A recent case highlights the importance of carefully considering what the inherent requirements of a job are, before terminating an employee's employment on the basis they can't perform them. It also emphasises the importance of considering what the role actually is if the employee has been performing modified duties for an extended period.
In Allan John Button v J Boag & Son Brewing Pty Ltd  FWA 148 Fair Work Australia found that the employee could perform the inherent requirements of a modified role, which he had been performing for almost a year. Further, he could perform the requirements of the original substantive role with the assistance of his colleagues. Fair Work Australia found that he had been unfairly dismissed, and ordered that he be reinstated.
First work out what the job is, then work out what the inherent requirements are
Mr Button commenced employment as a brewery technician for J Boag & Son Brewery Pty Ltd (Boags) in June 2005. In this role he needed to disassemble and reassemble machines to change products once or twice a shift. To do this he was required to assume awkward positions and lift more than 5 kg.
Mr Button had been diagnosed with a urinary condition at an early age. To manage this he required a urinary bag. In March 2008 he developed an abdominal hernia close to his urinary bag. He informed Boags and continued working.
In August 2008 Mr Button was told by his urologist, Mr Brough that his hernia had increased in size. He was advised to avoid lifting anything in excess of 5 kg. He informed Boags, who organised a workplace consultant to report on his fitness to perform his role. The subsequent report, issued in late October 2008, noted:
- the hernia had been noticed during an operation to replace Mr Button's urinary bag
- an operation to remedy the hernia would require a replacement of Mr Button's urinary bag
- Mr Button was not due to have his urinary bag replaced for ten years
- Mr Button should avoid strenuous activity, including lifting weights of greater than 5 kg, and
- Mr Button's duties would need to be restricted until his hernia was remedied with a further operation.
Mr Button complied with these restrictions and continued performing his duties. Co-workers assisted him in performing duties that involved lifting.
In mid November 2008 Mr Button sought to work overtime. He was told that it was Boags policy to not have workers rostered to perform overtime if they were on light duties. He said he would look into having an operation. The overtime issue resulted in Mr Button's situation coming to the attention of the Operations Manager.
Sometime before April 2009 Boags sought another report from Mr Brough. He told Boags in early April 2009 that in his opinion the restrictions on Mr Button's duties were effectively indefinite.
Boags then arranged for an occupational therapist, Ms Dallimore, to assess Mr Button's capabilities to perform the inherent requirements of his position.
The assessment by Ms Dallimore was done on the basis of his normal non-modified duties and his inability to lift more than 5 kg. It was completed in June 2009 without:
- reviewing the previous assessment
- speaking to Mr Button, or
- assessing his physical abilities.
There was no indication in Ms Dallimore's subsequent report that she was aware Mr Button had been performing modified duties for almost a year, despite her having been informed of this. The report also concluded that there were no other available roles that matched Mr Button's skills, but did not at any other point indicate that this issue had in fact been investigated by Ms Dallimore.
Termination of Employment
A series of discussions were held with Mr Button about his ongoing employment. Mr Button was told that Ms Dallimore's report was commissioned because Boags' insurance company had identified Mr Button as high risk and a liability to the company. At the final meeting on 11 August 2009, Mr Button's employment was terminated by Boags on the basis that Mr Button was unable to perform the inherent requirements of his position as a brewery technician.
Mr Button brought an unfair dismissal claim.
Boags asserted the termination of employment was fair as:
- the modified position was a temporary one, as they had not known prior to Mr Brough's report in April 2009, that the restrictions on Mr Button were almost indefinite
- Mr Button could not perform the inherent requirements of his permanent position without his co-workers help, and
- his restrictions, and the assistance from co-workers that he required, were causing operational difficulties and resentment among his co-workers.
SDP Kaufman found that Boags had known well in advance of April 2009 that the restrictions were indefinite, and had likely known in August or October of 2008. There was no substantive evidence of Mr Button's co-workers resenting assisting him. There was instead direct evidence of them considering it "not a drama".
SDP Kaufman found Mr Button could perform the inherent requirements of his position, which was the modified role. In this finding SDP Kaufman relied on the finding that Boags had been aware of the long term nature of Mr Button's restrictions prior to April 2009. Even if his permanent role was the unmodified position, SDP Kaufman found Mr Button was capable of performing it with the assistance of his colleagues. Boags were ordered to reinstate Mr Button.
Lessons for Employers
- Carefully consider what the actual inherent requirements of a role are before terminating an employee's employment for inability to perform.
- Consider whether the employee's role and the inherent requirements have changed if the employee has been performing modified duties for an extended period.
- Consider whether an employee can perform their original substantive role with reasonable adjustments.
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.