Terminatrion of employment and inherent requirements

When an employee becomes partly or fully incapacitated to perform the role for which he or she is employed, the employer needs to carefully consider the implications of a termination of employment. These extracts from a recent decision of the Fair Work Commiission illustrate the legal issues.

“The Full Bench of Fair Work Australia considered the operation of the incapacity provisions in s.387(a) of the FW Act in J Boag and Son Brewing Pty Ltd v Allan Button 39 (Boag and Son) and concluded as follows:

[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.

[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

“[102] The reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal…

[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.”…

[Footnotes omitted, underlining added]

[75] In CSL Pty Ltd (t/as CSL Behring) v Papaioannou 40 the Full Bench of the Commission said

[50] …that in a capacity case the Commission is required to consider and make findings as to whether, at the time of the dismissal, the applicant suffered from the alleged incapacity based on the relevant medical and other evidence before the Commission, as determined in Jetstar. 41

[76] The question before me to determine is therefore if the Applicant could fulfil the inherent requirements of her job as Store Manager – not a modified or adjusted role – at the time she was dismissed and based on the evidence before me.


Breach of Disability Discrimination Act

[82] The Applicant submits that the Respondent’s actions breach the Disability Discrimination Act 1992 (Cth) (DDA) and, as such, cannot provide a “sound, defensible and well founded” reason for dismissal and hence cannot be valid.

[83] The Applicant submits that the Applicant’s mental health and PTSD amounted to a disability under s.4 of the DDA and that the Respondent abrogated its responsibilities under the DDA. Further, the Applicant submits that the Respondent failed to engage with Dr Purchase about adjustments that might be made in the workplace when it received her report which said that the Applicant would require additional levels of support to facilitate a return to work. Further, it says the Applicant put forward some proposals for reasonable adjustments in her email on 2 January 2022.

[84] The Applicant submits that the DDA places a positive obligation on the employer to make adjustments for a person with a disability and that the obligation was on the Respondent to make all adjustments which did not otherwise cause the Respondent unjustifiable hardship. The failure of the Respondent to make the adjustments had the effect that the Applicant was treated less favourably than a person without a disability would have been treated in materially similar circumstances. In this regard the Applicant says that the appropriate comparator is a store manager who is experiencing a condition that prevents them working on a full-time basis and requires a graduated return to work.

[85] The Respondent says that a consideration of the DDA is misplaced as the inquiry before the Commission is whether or not the Applicant could perform the inherent requirements of her job at the time she was dismissed. Further, the Respondent submits the DDA provides an exemption from liability if a person cannot fulfil the inherent requirements of a job.

[86] The Respondent submits that it did consider the suggested accommodations of the Applicant. It also considered redeployment options and did not make a final decision until all adjustments and redeployment possibilities had been considered.

[87] I accept that a dismissal for a reason that is apparently unlawful would render that reason for dismissal not valid.

[88] A reference to the High Court decision in X v Commonwealth 45 is set out above in Boag and Son as it goes to the consideration of what the inherent requirements of a job may be. The DDA has been varied since the time of the decision in X v Commonwealth. Section 21A of the DDA relevantly states:

21A Exception—inherent requirements

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.

[89] Section 21A(1)(b) of the DDA says that it will not be a matter of discrimination if the aggrieved person cannot fulfil the inherent requirements of the work even if reasonable adjustments are made. In making this determination those matters in s.21A(2) are to be taken into account. Section 21B of the DDA however provides that it is not unlawful to discriminate against a person on the grounds of their disability “if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.” I am satisfied that this exception includes hardship brought about by any requested adjustments . 46

[90] The first question to be determined is whether the adjustments sought by the Applicant were reasonable. If they were then consideration must be given to whether, with these adjustments, the Applicant could have fulfilled the inherent requirements of her job.

[91] I am satisfied that the Respondent carefully and fully considered those matters put forward by the Applicant as adjustments she considered would enable her to return to the workplace, albeit on a reduced hours basis. 47 I accept that the Respondent did also investigate redeployment opportunities for the Applicant but that no suitable roles could be identified.

[92] I am satisfied that the Respondent had taken, and continued to take, steps to fill vacant positions in the store. I accept that the Respondent could not control employees deciding to cease working for the Respondent for any reason. Mr Driscoll gave evidence that, at the time the Applicant’s employment was terminated there were 3 managers in the store (1 being the store manager). I note that the Applicant did not accept these numbers, being concerned that one or other of the managers would soon leave the store. I also accept that the Applicant’s concerns in relation to staffing levels were investigated by the Respondent in late 2021 and it determined that her concerns were unfounded and that the store had an appropriate level of staff. Even allowing for vacancies to be filled to meet the requirements of the Applicant, the Respondent could not guarantee that this position would be maintained at all times.

[93] As to other matters identified by the Applicant in her email of 2 January 2022, I accept that the Respondent considered each of these adjustments. This was done in the context of the medial information, in particular that of Mr Marsh and Ms Jaeger, both of whom indicated that the Applicant’s mental health may be adversely affected by any return to work. 48 While the Respondent had a flexible work policy and could accommodate less than full time work and while there was no physical limitation of the Applicant performing the proposed work (building specials and alcohol top-ups) there was a concern on the effect of a return to the workplace on the Applicant’s mental health.49

[94] Having considered a range of adjustments and alternatives put forward by the Applicant the Respondent concluded that these could not be accommodated without risk to the Applicant’s mental health and were therefore not reasonable in the circumstances. Mr Driscoll, in his evidence, did not move from his assessment and I accept it as reasonable.

[95] I have also taken into account that, whilst some of the adjustments sought by the Applicant related to the tasks she could perform, others were more intangible such as what the Applicant considered to be the appropriate staffing level in the store and what Dr Purchase described as a more supportive environment. The “intangibles” it seems were subjective views held by the Applicant. A failure of the Respondent to provide support the Applicant sought to subjective expectations would be very difficult.

[96] I would also observe that, while the Applicant posited the appropriate comparator, she did not expand on this in submissions. Any assessment of whether the Applicant had been discriminated against would therefore not be possible. Given my findings on reasonable adjustment it is not, however, necessary for me to consider this further.

Conclusion as to valid reason

[97] Given my findings I am satisfied that there was a valid reason for the termination of the Applicant’s employment that went to her capacity to fulfil the inherent requirements of her job. Further, to the extent it is relevant I am also satisfied that the Respondent considered, but could not accommodate, adjustments to the Applicant’s role as she proposed……………………..”

Davis v Aldi Stores (A Limited Partnership) (2022) FWC 2387 delivered 20 September 2022 per Bissett C