In the case of MacQueen v Nyrstar Hobart [2020] FWC 6158 the Fair Work Commission found an employer had failed to explore medical advice, and therefore had no valid reason to dismiss an injured worker on the basis it was unable to make reasonable adjustments.

The worker suffered a cardiac arrest at work. On the advice of his treating practitioner, he returned to work on a graduated program with restricted duties and hours under the condition he undertook monthly blood lead level testing. His return to work program ceased when his blood lead levels increased.

The worker underwent a fitness for work assessment. The assessor had limited details of the worker’s role requirements and advised the worker had capacity to return to work on at least a part-time basis undertaking normal duties and would likely be within his future capacity following an appropriate period of work hardening. The assessor recommend the employer consider referring the worker for a formal functional capacity evaluation should it have concern about his capacity to undertake the inherent requirements of his particular role.

The employer ignored this recommendation and proceeded to terminate the worker’s employment based on the references to his blood lead levels and inability to undertake heavy work.

The law

The test for termination based on incapacity is set out in Neeteson-Lemkes v Jetstar Airways Pty Ltd [2013] FWCFB 9075 and involves consideration of the following:

1. whether the worker is currently fit to perform the inherent requirements of their job;
2. if not, whether the worker would currently be able to perform the inherent requirements of their job with reasonable adjustments; and
3. if not, whether the worker would be able to perform the inherent requirements of their job with reasonable adjustments in the foreseeable future.

When determining whether an adjustment would be reasonable, the following must be considered:

• the worker’s circumstances, including the nature of any illness or injury;
• the nature of the worker’s role;
• the nature of the adjustment required to accommodate the worker’s illness or injury;
• consequences that not making the adjustments would have for the worker.
• the size and nature of the organisation;
• the organisation’s financial circumstances; and
• the effect that the adjustment would have on the organisation (i.e. financial, efficiency, productivity, benefit/disadvantage to others).

If, after following the above process, a worker is determined not fit to perform the inherent requirements of their job (and assuming this can be demonstrated with medical evidence), their employment can be terminated on that basis.

Lessons for employers

1. A detailed position description must be provided to an assessor when seeking a report on a worker’s fitness to perform the inherent requirements. One must be prepared if it does not already exist. Without this information, an assessment may not be relied upon to say the worker is unable to perform the inherent requirements of their role.
2. Once an employer commences a process of determining a worker’s capacity to perform the inherent requirements of their role, they must commit to the process and follow through with it. This includes seeking clarification from assessors about the contents of their reports where required. In this case, the employer clearly should have followed the assessor’s recommendation and referred the worker’s to a formal evaluation and, at the very least, sought clarification about what the assessor meant by “work hardening” before claiming it could not make any reasonable adjustments to accommodate the worker’s return.
3. The validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, so long as those facts existed at the time of the dismissal. In this case, the evidence clearly indicated the worker was unable to perform the inherent requirements of his role at the time of termination. However, there was no evidence to support a finding the worker would be unable to perform the role sometime in the future.

Written by Nes Demir

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