In Anderson v Essential Energy [2011] FWA 7423, Anderson suffered permanent damage to his leg and ankle in an accident at work in 2001. He later returned to work on light duties and in 2006 became one of three Team Leaders, a role which was compatible with his ongoing disabilities. A restructure in 2010 reduced the number of Team Leaders to two and he was unsuccessful in applying for either of the remaining positions. He was subsequently offered, and accepted, a position as an Electrical Technician, a role he had in fact held before he became a Team Leader in 2006.
Shortly afterwards, he complained about discomfort whilst driving the vehicle that he used in the new role. He was medically examined and deemed capable of performing his duties, subject to certain limitations, but was subsequently dismissed on the grounds that he was considered incapable of performing the 'inherent requirements' of his job in its entirety. (Anderson maintained that he had not in fact been made aware of the requirements of the role before it was offered to him).
FWA found that he had been unfairly dismissed, as his various managers had all been aware of the nature of his injuries and his limitations before offering him the job and had offered him the position 'modified in such a way that the Applicant was capable of performing the role'. That modified position became the job that he was capable of performing.
The moral of the story? If a capability dismissal is contemplated, make sure that there is effective communication with management and a proper understanding of the practical effects of the employee's condition. (And don't forget to consult with the employee...)
For more information about this update or any other employment matters, please contact Tim Lethbridge or Kylie Wilmot on (08) 9321 3755.
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