There are many unfair dismissal cases which arise from the dismissal of an employee who, according to the employer, is unable to fulfill the inherent requirements of the job. There are various legal issues which arise in this context, not the least being whether and to what extent an employer is required to make what are sometimes called “accommodations” for the employee so that he or she can carry out the physical (and presumably the mental) requirements of the job.
In upholding a dismissal on this basis in Dennien v Copper Refineries Pty Ltd (2016) FWC 3675 delivered 7 July 2016 – Booth C reviewed the legal authorities thus
“The issue of capacity to perform the inherent requirements of a position in relation to termination of employment was considered in J Boag and Son Brewing Pty Ltd v Button 19 (Boag) where a Full Bench of Fair Work Australia cited the decision in Qantas Airways Ltd v Christie,20 where McHugh J drew attention to the distinction between an employee’s job and position:
A person’s job is therefore primarily concerned with the tasks that he or she is required to perform.
…in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks the person must perform. A person’s position … is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person’s position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position. 21
The Full Bench in Boag considered that there may be circumstances where the capacity to perform the inherent requirements of the job may form a valid reason for termination:
It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. .… Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.22”
The Federal Court carefully considered the construction of the DDA, and the nature of reasonable adjustment, in Watts v Australian Postal Corporation (Watts)30. For the purposes of this case, the following salient points were made by Mortimer J:
(a) reasonable adjustment is “for” the person with the disability, not adjustment “to” the position the person occupies;31
(b) s. 21A of the DDA, which provides a defence on the basis of inherent requirements, “requires a focus on the position, task, services or conduct the aggrieved person performs, or seeks to perform in the workplace.”32
(c) “if the employer makes (or were to make) all adjustments for the person that do not cause the employer unjustifiable hardship, and the disabled person cannot perform the inherent requirements of the particular work, only then does the s. 21A exception apply”;33
(d) in exploring whether the worker must be able to undertake the work immediately on institution of reasonable adjustment, Her Honour observed: “allowing time for an employee to adapt, and gradually return to full capacity, itself forms part of the ‘reasonable adjustments’ made, subject in any given case to the unjustifiable hardship exception”;34
(e) in considering the relevant comparator in Ms Watts’ circumstances, Her Honour observed that the salient factor was her ability to “return to her position”.35
In my view, the DDA, construed with the benefit of Watts, seems to stand only if the reasonable adjustment is referrable to the worker’s previous position. An employer might attempt to secure alternative employment as a matter of its policy, but on the strength of Mortimer J’s observations and the reading she gives to the DDA, reasonable adjustment does not include a different position or duties altogether. In this case, having considered reasonable adjustment of the position/ tasks performed in his role as cell attendant the Respondent’s actions do not breach the DDA.”
Although it is not clear to me how the DDA is relevant to the obligations of a private national system employer, and Commissioner Booth does not attempt to explain why it might be, I have included the relevant provision of the DDA hereunder.
**Sec 21(A) Exception–inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator ) to discriminate against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person’s past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator–the aggrieved person’s performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
(3) For the purposes of this section, the aggrieved person works for another person if:
(a) the other person employs the aggrieved person; or
(b) the other person engages the aggrieved person as a commission agent; or
(c) the aggrieved person works for the other person as a contract worker; or
(d) the other person and the aggrieved person are members of a partnership; or
(e) both of the following apply:
(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;
(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.
Opportunities for promotion, transfer and training and registered organisations
(4) This section does not apply in relation to:
(a) discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or
(b) discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009 ).