Assessing inherent requirements of job for reinstatement: FB of FWC

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Assessing inherent requirements of job for reinstatement: FB of FWC

A full bench of the Fair Work Commission has upheld an employer’s appeal in ruling that the inherent requirements of the pre-injury job (and not a modified job) were relevant in deciding whether an injured worker should be reinstated.

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A Fair Work Commission full bench has upheld an employer’s appeal and ruled that the inherent requirements of a pre-injury job (not a modified job) were relevant in deciding whether an injured worker should be reinstated.

On 24 March 2016, it granted the employer, Lion Dairy and Drinks Milk Limited, permission to appeal against a decision (deputy president Bartel) of 10 February 2016 regarding an unfair dismissal application by Mr N.

The deputy president had ruled Mr N’s dismissal was unfair because it had been unjust and unreasonable. The deputy president ordered Mr N be reinstated to his former position (to be suitably modified) and reimbursed for lost remuneration.

Mr N had been injured in a skydiving accident and sought reinstatement as a maintenance technician (fitter) at a dairy plant.

Full bench found reasoning was flawed


The full bench upheld the employer’s appeal against the reinstatement, citing J Boag and Son Brewing v Button.

In that case, a worker had permanent restrictions and was unable to fulfil the inherent requirements of his original position. The employer arranged for other workers to assist Mr B in his role for many months. It was held at first instance that Mr B performed the inherent requirements of his position as it had been modified by his employer when he was assisted by other workers.

On appeal, the full bench held that it was the substantive role and not any modified, restricted duties or temporary alternative position that must be considered.

Current case


In Mr N’s case, he had been absent from work for more than a year. He was sent for medical assessment by an occupational physician and was provided with a show-cause letter indicating the nature of the medical advice. Mr N submitted an alternative medical certificate.

His employer assessed the situation and concluded, based on the medical information, that it could not make any reasonable modifications which would enable the worker to perform the inherent requirements of the substantive role. Additionally, the employer was unable to find any other suitable positions that met the worker’s medical restrictions.

The full bench considered this was a reasonable position for the employer to take.

Decision of deputy president Gooley


In a separate decision from the joint decision of vice president Watson and Commissioner Wilson, Deputy President Gooley was satisfied there was a valid reason for the dismissal: Mr N was not able to safely perform the inherent requirements of his position and there was no reasonable accommodation that could have been made to enable him to perform the requirements safely.

The Deputy President emphasised it was not sufficient that the employer believed, based on the medical evidence before it, that it had a valid reason for dismissal.

The Commission must be satisfied there was a valid reason for the dismissal based on the evidence, the Deputy President said.

The bottom line: Capacity to perform the inherent requirements of a job is critical to a successful reinstatement application. In making that assessment, the relevant job is the pre-injury position.

Lion Dairy and Drinks Milk Limited v N [2016] FWCFB 4218 (28 July 2016)

See also: Appeal: worker's ability to perform job questioned
 

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