Join our

mailing list.

Keep up to date with our latest insights.

  • This field is for validation purposes and should be left unchanged.
Friday Workplace Briefing

Is He Fit for Work? The Wash Up of Little’s Case

In this week’s Friday Workplace Briefing, Andrew and Nina discuss the law around inherent requirements of the job and false representations of fitness to work, at the time of employment.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

Stay updated with our Friday Workplace Briefing

Subscribe to receive the latest Friday Workplace Briefing in your inbox every Friday, where you can hear the critical news and developments that affect your workplace.

Listen to podcast

About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: I want to talk a little bit about inherent requirements, and there’s a reason I want to talk about it ’cause I just want to go through some basic principles, okay? So first of all, what are the inherent requirements of the job?

Boags and Button was the case, I think, round about 12 or 14 years ago now, where a supervisor worked at the Boag’s Brewery, occasionally had to move barrels of beer, which were 25 kilogrammes. And as a result of a long-term injury, he was unable to do it.

But the business managed without any loss of productivity. When Boag’s was taken over, they looked at their workers’ comp list, and they said, “Let’s terminate this guy.” And what the court said is, “Actually his job is a supervisor.” That was a substantive part of his role and the fact that he did these ancillary tasks from time to time and there is no loss of productivity or profitability as a result, but it doesn’t fall in the inherent requirements.

So the inherent requirements is the substantive part of the role the person is employed to do. So it might be that Nina and I, at different times, will go out and get coffee, or Nina will photocopy something that I need. If Nina breaks her arm and can’t do the photocopying or can’t get the coffee ’cause she’s got a sore knee, that doesn’t mean she’s not fit for the inherent requirements ’cause she’s employed as a senior associate, who’s a lawyer.

So be very careful about being too brittle around what is it.

But the next question then comes into saying, “Well, what happens if I don’t have my job descriptions, right? What if I’m wrong about that?”

Nina Hoang: So common.

Andrew Douglas: Yeah, and it is too common. Dziurbas and Mondelez is an old discrimination case. And I use it because it’s my favourite example of how bad you can be with job descriptions.

But in that case, he was an elderly man, he was about 63. He was a confectioner by trade. Nobody believed he was fit for the inherent requirements of the role. Again, Mondelez took over the operation of this business. They subjected him to assessment. The assessment said he wasn’t fit with the inherent requirements. He brought a discrimination claim.

And the judge who was listening to it said, “Well, the difficulty I have is he’s told me what the job is. The operations manager’s told me the job is different. The HR manager’s told me the job. So how can I be satisfied there aren’t reasonable adjustments when I actually don’t know what are the inherent requirements of the job?”

So he won only a small amount of money, but the case has probably costs about half a million in legal fees.

My point about it is, if we’re going to talk about the inherent requirements, the most important thing is to line up our job descriptions and task analysis.

And anyone who says to you, “I’m just too busy to update them,” it’s nonsense. You can’t do a restructure and not focus on what is the capability statement of the person who’s doing it. It is the core.

Nina Hoang: And it leaves you exposed, I think. The amount of times where you see people, and they’re like, “Oh, you can’t do it.” It’s like, “But this is my position description. Where does it say that I have to do that?”

Andrew Douglas: I know. And look, the most, the Delta case we just gave you sits on the back of the old high court case in Cosma and Qantas, where there was a baggage handler, had a knee issue, was sent away to do, you know, data input and a whole lot of stuff.

But the most important part of Cosma, which is for you, as the employers, the most important thing to remember is during that rehabilitation process, their main documentation, which was constantly saying, “These are not the inherent requirements of the job. These are either a get-better plan or a return-to-work plan towards returning to the inherent requirements, but these are not the inherent requirements of the job.”

And after that period of time, a person can’t do the inherent requirements. You’ve got a documented history that demonstrates the person’s not fit for them. But if you don’t have that documentary process, what you’re left with is an argument around waiver or condonation saying, “No, you’ve accepted there is a new role.”

Nina Hoang: Yeah.

Andrew Douglas: Okay, so you’ve got to be very clear to say when you’re rehabilitating someone, whether it’s workers’ comp or not, that the roles that they have to do to be fit for the inherent requirements is the inherent requirements of the job and not condone or just let things slide ’cause after a period of time and what Cosma became clear, after a year of doing another job without any of that structure around it, you’ve implicitly agreed to a new job for the person, okay? So it’s a really big issue.

Okay, we’re there, we’ve got to the inherent requirements. What am I going to do? What’s the test when I say is someone not fit for it after a significant period of not being able to? Case is Stergioti and Toyota, which says you’ve got to be satisfied the person is not fit for the inherent requirements of the job now or in the foreseeable future and will not be fit now or in the foreseeable future with the reasonable adjustments that could be made to the inherent requirements. If you’re satisfied of that, then you’re able to terminate, okay? So they’re the tests.

Nina Hoang: But you need evidence, not just your own assessment.

Andrew Douglas: Yeah, and there’s more recent cases which say you must rely on your own independent medical evidence to be satisfied of that. You can’t just rely on generalised medical evidence provided by them. There’s been a few cases that have snuck through where there’s some poor decision-making.

Nina Hoang: Oh.

Andrew Douglas: But the good lore is that you do it yourself. And you cannot rely on medical information for workers’ compensation.

Okay, now let’s go to the other part. I want to employ someone, but I don’t know if they’re fit for the job. So there’s a case called Duncan and Kembla, which is a great case, where Nina had signed a contract, and they said you got to do a pre-medical. They did the pre-medical after she signed the contract. There was nothing in the contract that said you had to be fit for the inherent requirements. But when I looked, when the pre-medical came through, it was clear that this person was not fit for the inherent requirements.

And Kembla Watertech was the name of the business, succeeded in saying, “Well, we don’t have to employ you ’cause you’re not fit to the inherent requirements, and there is no reasonable adjustments that can be made.”

It’s right on the edge of the law. Like, it was, it’s risky. And that’s why we spoke particularly about Little’s case, which is a case which said, “Well, you’ve got to have someone actually disclose.”

Nina Hoang: Yep.

Andrew Douglas: So what’s the process of disclosure? The process of disclosure requires Nina saying to me, “Andrew, this is the job. These are the inherent requirements of this job. This is what it actually looks like both physically and psychologically to be able to do that task. Are you fit for doing that? Is there any injury or illness that you have which would prevent you from doing that? And I want you to sign this Section 41 under Safety and under Workers’ Comp-”

Nina Hoang: Workers’ Comp.

Andrew Douglas: “Legislation, similar in Queensland, doesn’t exist anywhere else, okay?”

Nina Hoang: Yep.

Andrew Douglas: But in every state and territory in Australia, it is lawful to require someone to say they are fit.

Nina Hoang: But they can only do that if, like you said, you actually specify it. It’s not up to them to predict what the job will involve and disclose everything. If you don’t outline it, then you’re the one who’s going to be sad.

Andrew Douglas: Totally, and so look, Toll and Ellis is the last case that I just want to talk about, which basically said, “Okay, you’ve got this process, which is you do all the right things. You give them the job description, you give them the task analysis.”

You say, “Look, is there anything, anything at all that you’re aware of in your own medical history that could prevent you doing?” By the way, the same process applies if you’re going to a doctor, okay?

You’d still, what Toll and Alice said is, “You must bring home to them that the failure to be honest about this would lead to the termination of employment.” It should be in their contract of employment.

Now, I just thought we’d go through those details today, and then return and look again at what Little and West Australian Police case was about. This was a person who knew they had physical injury.

Nina Hoang: Significant one that would impact their role.

Andrew Douglas: Impact their role. So they got through and the nature of that injury meant they couldn’t lift, hold far, and point a gun.

Nina Hoang: Couldn’t arrest people.

Andrew Douglas: They couldn’t arrest people. I mean, as a police officer, that does sort of go with the role.

Nina Hoang: They couldn’t drive a car.

Andrew Douglas: Yeah.

Nina Hoang: So what could you do as a police officer?

Andrew Douglas: But it just shows you that in that case they went through and because it’s the police, an inordinate procedure of over two years of testing and satisfying themself, it wasn’t.

But what the court relied on as a result of submissions was the failure to disclose was a breach of this person’s own safety obligations to do everything that was reasonable to prevent injury to themself or others.

So it was the beginning of a new piece of law coming through that we’re going to talk about it a great deal over the next year, which is, well, when does safety law intrude into employment law?

Nina Hoang: Yeah.

Andrew Douglas: And what we’re seeing in every jurisdiction is safety is playing a bigger role, not only the way judges are dealing with it in the employment jurisdiction, but the way safety regulators are penetrating into other jurisdictions.

So look, that’s my summary today, inherent requirements. I’m sorry, it’s sort of back to basics, isn’t it? But I thought it might be helpful to actually have a chat about it.

Let’s go to the case study. You’re across this, aren’t you?

Nina Hoang: Sure.

Darby was a Health and Safety Representative at Square Peg Packaging.

Actually, I had read this, and it made me chuckle.

His designated work group was the printing and packaging area, DWG. At morning tea, one of the union members complained about how unfair the supervisor, Joel, was in managing staff. Darby decided to investigate what he described as a psychological hazard.

He left the line where he worked without the permission of Joel, turned his mobile phone on, and surreptitiously followed and filmed Joel. The video showed Joel swearing with other employees, but not in an abusive way, just part of everyday speech. But it did include him giving directions using swear words. He sent the video to his union organiser, Claire, and asked her to attend. Claire said she would only, she would drop by later in the day.

When she arrived, she said she had reasonable grounds to suspect that the supervisor, Joel, had been creating safety risks through psychological hazards. The operations manager, Dave, said he would need to know more to ascertain if it was reasonable to attend site. Claire said she had a specific complaint and verbatim evidence of a breach. She said she wanted to speak to her members. Dave said she could see them in the smoko room in 50 minutes’ time. Claire said she was short of time and wanted to go on the floor.

Dave said only if she received a safety induction. The plant was a dangerous plant for outsiders as forklifts ran about collecting packaging. There was complex packaging lines, and it was a large plant. And that would take about 45 minutes. So why not see them in the smoko? Claire pushed past David and said she won’t be hindered by him and strode through into the production area.

Darby filmed Claire pushed past and posted both Claire’s push-past video, (this is terrible English), and the video of Joel on Facebook.

Andrew Douglas: The only fun I have when I’m doing this, you know that.

Nina Hoang: Union forced to enter Square Peg Packaging to stop thug-like behaviour from supervisor. Claire ignored traffic management floor markings and walked up to members and non-members alike, asking about Joel. When she saw Joel, she called him an effing thug bully, and he should just F off back to where he belonged. Joel’s parents were from Pakistan, he was born in Australia.

After Claire left, SPP became aware of the posting of the videos by Darby. He was called to a show cause meeting the following day and attended with Claire. There was no enterprise agreement. And the only right enjoyed by Claire was as a support person. She shouted and berated the SPP ladies in the room, was asked to leave and refused, and eventually, security were called to remove her. Darby’s employment was terminated summarily.

I would love to say that.

Andrew Douglas: I think we do most weeks, to be honest.

Nina Hoang: I’ve not seen people get escorted out.

Andrew Douglas: Oh no, I have. I’ve actually arranged security be present to do it.

But anyway, so one question. One, did Claire enter lawfully? And if not, what could SPP do to prevent her entry to take action afterwards? Well, she’s obliged to have a notice.

Nina Hoang: Yeah, she didn’t provide any notice.

Andrew Douglas: Yeah, so she might have showed a permit, but there was no notice.

Nina Hoang: You have to give 24 hours’ notice.

Andrew Douglas: No, not on the safety. You can enter straight away.

Nina Hoang: Oh.

Andrew Douglas: So that’s the difference with safety, and that’s why it’s often abused in this way. Oh, so under the Fair Work Act, she’s got to give 24 hours’ notice, but there is still a requirement under 87 to provide a notice in a form approved by the authority. But the authority doesn’t approve a particular form, but it has to show that reasonable basis of suspect.

Nina Hoang: But she also hasn’t complied with their safety obligation.

Andrew Douglas: No, no, and unquestionably, they’re entitled to require her to both sign in and be inducted.

Nina Hoang: Do induction, yeah.

Andrew Douglas: So no, she did not enter lawfully, bit of a problem. This is why we’re doing the right of entry training in a couple of weeks’ time because this is the sort of stuff that’s so common.

What can you do about that? Well, you can revoke a permit, you can do a whole lot of stuff. Not easy, expensive, hard work. But the bottom line is you can just refuse her entry and keep the doors locked is what you can do.

Nina Hoang: But she’s pushed past, so you would physically remove her.

Andrew Douglas: Well, that’s the whole point. Not easy, is it?

Nina Hoang: Yeah.

Andrew Douglas: Yeah, not easy. So was Darby allowed to make the videos he did as an HSR? Now, this is a trick question, so don’t answer it, I’ll answer it. Claire is allowed to do it.

Nina Hoang: Yeah.

Andrew Douglas: Darby is not allowed to do it. Darby, would be a breach of proper policies occurring because he is videoing people without their consent and permission.

Nina Hoang: And posting it without their consent and permission.

Andrew Douglas: And worse still, posting it. But yes, was he allowed to make it? No, he was not allowed to make it, okay?

Can I just, we stop at that moment. I don’t want to be crazy about the use of mobile phones ’cause everyone uses them. So if there is an incident, in particular, physical hazard, don’t say to the HSR, “You can’t video that.”

What you’ve got to say to the HSR is, “Look, please don’t video people without their express consent.”

And there’s a reason for that. And that is third party videoing is a breach of Surveillance Devices Act in Victoria.

So if I video you, I record you, I’m allowed to do that. I’m having a discussion with you. But if I’m doing it to a third party without their consent, it’s a breach of Surveillance Devices Act.

Nina Hoang: You still have to tell them that you video or?

Andrew Douglas:Yeah. No, you don’t. No you don’t. Not during-

Nina Hoang: Under Surveillance Act, yeah.

Andrew Douglas: No, no. In every other state and territory, not in Victoria, okay? It’s only third parties that you have to advise about, okay? Tricky, isn’t it?

Nina Hoang: All right.

Andrew Douglas: It’s crazy, but it’s true.

Did anything Darby do amount to misconduct? And if so, was it serious misconduct? Do you want to start listing it?

Nina Hoang: Yeah, well, firstly, the videoing.

Andrew Douglas: Leaving the line, don’t forget leaving the line without consent.

Nina Hoang: Oh, true, yeah.

Andrew Douglas: Yeah, so he’s an HSR, which means he’s an employee, but it doesn’t mean that he can disrupt work. It means he can’t be unreasonably refused what he’s going to do either. But if it’s in relation to investigating a complaint about behaviours, what he’s entitled to do is really not leave the line to chat to people during breaks. It’s not about stopping the line to do it.

Nina Hoang: And ignore their direction as well.

Andrew Douglas: Yep, yes, so then doing the videoing and then posting it.

Nina Hoang: Yeah.

Andrew Douglas: And then you’ve got, we don’t even get to an out-of-work conduct, he did it during working hours. So he posted it.

Nina Hoang: And he made defamatory comments as well.

Andrew Douglas: Yeah, so he’s in a lot of trouble, I would’ve thought, Darby. So let’s see what the next question is. Was the termination of employment in breach of the protection of HSRs under the OHS Act? So remember, yeah.

Nina Hoang: No.

Andrew Douglas: I just want to go back and say there is both a criminal and civil division under safety legislation about discriminating for prohibitive reasons. And that’s on HSR doing their role.

Nina Hoang: Yeah, but he’s not doing his role.

Andrew Douglas: He’s not, and that’s all.

Nina Hoang: He’s exceeded his responsibility.

Andrew Douglas: Yeah, that’s all I want to highlight is some of the parts and the things that he did, like speak to people, leaving the line on its own could get into in some risk if it was immediate risk to somebody. But yes, no, he would not go well in any claim that he brought under Safety or the Fair Work Act. Would the safety regulator prosecute SPP for any breach? And if so, what?

Nina Hoang: Unlikely, I think. At most, like, giving instructions with the swearing.

Andrew Douglas: Yeah, so that’s what I mean.

Nina Hoang: But it seems like the banter of that.

Andrew Douglas: Yeah, what we’ve got here is a lot of noise, but not a lot of facts.

Nina Hoang: Yeah.

Andrew Douglas: Joel, the supervisor, did he do the wrong thing? Actually, we don’t know ’cause we don’t know the culture in which it was given, with swearing was a normal part of that culture. And there’s a whole lot of case law that says non-abusive swearing as part of that culture. It’s not a breach of law per se, okay?

Nina Hoang: Yeah.

Andrew Douglas: But after that, there is no evidence at all of misconduct or any behaviour which breaches safety legislation by SPP or by Joel. So I put it in there because there’s a lot of noise. And when you and I get safety disputes, we hear lots of noise, don’t we? But when you actually drill down, actually, there’s nothing wrong.

Nina Hoang: Yeah.

Andrew Douglas: Okay? So that’s us for the day. Now look, what I do want to do is raise one more time, the breakfast that we’re having.

Nina Hoang: We’re having, yeah, right of entry stuff.

Andrew Douglas: Yeah, the right of entry. That’s a great sign, isn’t it?

Nina Hoang: Yeah.

Andrew Douglas: And I want to raise in that we did this problem today just to focus on how difficult it is. So what do you do with the Claires of the world? And we’re seeing it daily now, the entry is being used particularly around psychological hazards, which are much more diffused and harder to say what is the reasonable suspicion. And it’s harder when they come in and show their notice and say, “Look, this is, I reasonably suspect.”

How do you ask when they’re not, they have a legal right not to identify the members, yet they’re raising a psychological hazard? So we’re going to talk about all those things.

Nina Hoang: Yeah, so please join us and RSVP to the admin email.

Andrew Douglas: Okay, Nina, great to see you.

Nina Hoang: Yeah.

Andrew Douglas: You’re still under the weather, you’ve had a tough run. And we’ll see you all again next week.

Nina Hoang: Give us a thumbs-up.

Andrew Douglas: And give us a thumbs-up, cheers.

Nina Hoang: Bye.

Check this next

Andrew and Kim discuss the standard of proof and process in managing a theft allegation in your workplace.