Inability to Perform Inherent Requirements of the Job

Employers need to have sound strategies and processes in place to respond to situations where employees are physically unable to fulfill the inherent requirements of their job and may request ongoing alternate duties or permanent redeployment. The obligations owed by employers was examined in the recent case in W E v Visy Board Pty Ltd involving a long term employee of the recycling giant who challenged his dismissal following a non-worked related injury.

The employee had worked at a Visy Pre-Plant since November 1996. He generally worked either morning shifts from 7 am to 3 pm, or afternoon shifts from 3 pm to 11 pm, as part of a three-person crew comprising a qualified printer and two trade assistants.

The employee’s role involves a range of regular and constant physical exertions. These included manoeuvering machinery components, bending over and jolting machines, continual squatting, twisting and turning, climbing and descending stairs, as well as lifting buckets of ink up to 15kgs.

In September 2018, whilst overseas on holiday, the employee sustained an inversion injury to his ankle while stepping onto a bus. After returning to Australia, he undertook rehabilitation and physiotherapy, and his foot was immobilised in a moon boot for a period of four months.

Prior to his dismissal on 28 July 2020, he had not returned to work since sustaining the injury.

During that period, the employee provided ongoing medical certificates, which suggested that he may be able to perform unspecified alternate light duties to assist in his recovery. Visy’s Operations Manager arranged for the employee to attend an independent medical examiner (IME) to assist in determining whether he could perform any light, restricted or alternate duties at the plant.

Several occupational workplace physicians examined the employee as well attending the plant to observe the typical duties undertaken by his colleagues. There was general agreement amongst the specialists that the employee was concerned about ongoing pain through the possibility of re-injury and the unusual length of time he was taking to recover. No suitable duties were identified that could accommodate his condition.

Consequently, in April 2020, Visy wrote to the employee stating,

”the conclusion drawn from the reports is that it appears (Mr E) did not have the capacity to return to work in his pre-injury role at that time or in the foreseeable future and therefore they were considering the termination of his employment”.

?Following a response and show cause meeting, the employee was terminated.

In her decision to dismiss the employee’s application, Commissioner Katrina Harper-Greenwell accepted that the employee was unable to perform the inherent requirements of his role. She noted the medical conclusions that he,

“could not remain on his feet for a period of more than an hour at a time and he should take an alternate equivalent rest period. He also recommended that (Mr E) avoid lifting or moving weights of 10 kg or more”.

Therefore,

“Considering the physical nature of the role and tasks to be performed, those restrictions alone prove to be a barrier for Visy being able to return (him) to work on a graduated workplan or modified duties and there is no evidence before me to suggest otherwise”.

The Commissioner also accepted Visy’s argument that it is not obligated to redeploy him as he was not being made redundant. She accepted that the medical evidence confirmed he was unfit to perform his pre-injury role and that the decision that they could not reasonably accommodate his restrictions was sound.?Consequently, his application was dismissed.

Whilst the current case did not require consideration of redeployment opportunities, Workforce Advisory highly recommends this.

W E v Visy Board Pty Ltd (U2020/10790) 29 June 2021

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For questions about managing injured employees, return to work options or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.