One Minute Summary

• Navigating situations where an employee can no longer perform part of their duties due to their physical limitations can be quite complicated for employers.
• Firstly, employers need to get a professional assessment of the employee’s ability or limitation.
• Secondly, they need to determine the inherent requirements of the employee’s job role.
• Thirdly, where the employee has limitations, what reasonable adjustments can the employer make to accommodate the employee’s limitations.
• If the outcome is that the employee cannot undertake the inherent requirements of their role then the employer must follow proper process which may lead to a potential termination.   
• Employers are advised not to make this assessment themselves as they are usually not qualified.

Hunter Employee Relations has been advising a client where one of their employees is unable to undertake the full range of their duties due to his size. He spends a lot of time sitting and is neglecting some of his core duties which involve physical activity.

While the manager is concerned that he is unlikely to gain another job, she is also asking what options are available to the employer in such situations.

As usual with such employment law matters – ‘it’s complicated’.  It revolves around the following key points:  

1. The employee’s ability or limitations; and
2. The inherent requirements of the job; and
3. Whether it is reasonable for the employer to make adjustments to accommodate the employee’s limitations.

Let’s examine the above factors through a Fair Work Commission decision involving a forklift operator in a warehouse environment.

Mr Al-Omar, 67, had been employed by Total Logistics in the capacity of a forklift operator for approximately 7 years. While his key duty is loading or unloading trucks and putting away pallets, he also undertakes several other related duties.  

The employer organised an occupational therapist assessment when it became obvious that Mr Al-Omar was not able to undertake all his duties. While he was able to operate and drive a forklift, he had trouble entering and exiting. He also had substantial difficulties undertaking stock scanning duties and adjusting truck trailer floors after they were unloaded as both of these duties were non-seated activities.

The functional assessment required Mr Al-Omar to lift weights, squat, bend and reach. On examining the required forklift operator duties, it stated that Mr Al-Omar had limited ability to move around pallets to scan them, showed a great deal of effort climbing any stairs and had limited physical ability to adjust the levels in the truck trailers. Ultimately, he was not able to safely move the levels or to scan stock pallets which were routine tasks of his role.

On receiving the assessment, the manager reviewed whether he could accommodate Mr Al-Omar’s limitations in other ways. He found the only way this could be done was to employ another person to assist him or to ask the other operators to do his duties. The other employees were already frustrated as they were carrying his duties.

During the Fair Work Commission unfair dismissal proceedings Mr Al-Omar contended that as a forklift operator he should not have to undertake truck driver or storemen duties. He believed that the employer had unfairly expanded his duties beyond those of a forklift operator.

Total’s position was that all forklift operators undertook scanning duties as well as changing the levels in truck trailers. These duties were part of the forklift operator position description and were being undertaken by other forklift operators – but not by Mr Al-Omar.  If Mr Al-Omar was permanently exempted from these duties it would place an unfair burden on the other forklift operators.

The employer confirmed that they did not employ storemen and that scanning and truck floor adjustments tasks were included in the forklift operators’ standard duties. He denied that Mr Al-Omar’s duties were unfairly expanded as this was the practice across all company locations.

After being issued with a letter Mr Al-Omar attended a meeting with his solicitor. The solicitor requested a week to obtain a medical report from the employee’s personal Doctor but this never materialized.

On closely examining the duties Deputy President Colman determined that scanning pallets and changing truck levels were part of the duties of all forklift drivers, were included in the position description and consequently undertaken by the other forklift operators. The Deputy President rejected the argument that such duties belonged to storemen or truck drivers.

Thereafter the Deputy President addressed the issue of reasonable adjustments stating it was not reasonable to exempt Mr Al-Omar from these duties. It was not reasonable to employ another person to assist Mr Al-Omar or to expect the other forklift operators to cover his duties even though that had been the recent practice.  

The Commission found the employer had a valid reason to terminate Mr Al-Omar based on his limited work capacity finding that “He was not able to perform all the inherent requirements of his job”.

Commentary

It is important to note that the employee did not dispute his inability to undertake these tasks. Where an employee provides contradictory medical information it can make these situations more complex as Fair Work can take an employee’s personal doctor more seriously on the basis that ‘they know the employee best’.

Undertaking a functional assessment (over a medical assessment) provides the most reputable result but can still be challenged – ‘occupational therapists are not Doctors’.  Employers are advised against undertaking their own assessment as it would not be regarded well in proceedings.

In such potential termination scenarios, the process leading up to a termination needs to be carefully managed. From reviewing many decisions some Commissioners appear to feel sorry for the employee (as does the manager mentioned at the start) and leave no stone unturned to find something in an employee’s favour to sway an obvious decision against them.

Some employers have position descriptions and use them day to day to manager the work function. Others have them but they sit in a folder on a shelf and are not updated. In this case the employer had up to date position descriptions which clearly articulated the day-to-day nature of the position’s role. Very useful!

Employers dealing with situations as outlined above should seek professional assistance. The employee may have unlawful termination rights if the limitation can be regarded as a disability. Further information on the implications of an unlawful termination can be found here.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

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