This extract from a Fair Work Commission unfair dismissal case deals with the legal issue of the relevance of the inherent requirements of the job.
“Consideration
[20] In considering whether I am satisfied that Mr Burmester’s dismissal was harsh, unjust or unreasonable (s.385(b) of the Act), I must take into account the criteria outlined in s.387 and will do so below.
Was there a valid reason for dismissal relating to Mr Burmester’s capacity or conduct? – s.387(a) of the Act
[21] In considering s387(a) of the Act, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the
safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”22 and should not be “capricious, fanciful, spiteful or prejudiced”.23
[22] In the Termination Letter, the Respondent stated it was terminating Mr Burmester’s employment because it had determined that he was no longer fit to perform the inherent requirements of his substantive duties. The Respondent further outlined that it had determined that Mr Burmester’s condition would only worsen over time irrespective of whether he continued to perform his substantive duties and that neither rehabilitation nor a leave of absence would change his condition or fitness for work. Finally, the Respondent indicated that while it had considered Mr Burmester’s request for a non-productive role, it had determined this was simply not viable, and as to the possibility of installing a higher hoist, this was ruled out on the basis that it could not see how doing so would reduce the risk of further injury or deterioration because Mr Burmester would still be required to look up, thereby placing stress on his cervical spine.
[23] The consideration of s.387(a) of the Act in this case requires the Commission to consider: firstly, whether Mr Burmester was capable of performing the inherent requirements of his role as at the date of dismissal based on the relevant medical and other evidence before the Commission; secondly, whether Mr Burmester would be able to perform the inherent requirements of his role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to his role to accommodate any current or future incapacity.24
[24] There was much debate as to what constituted Mr Burmester’s substantive role as at the date of his dismissal. I am not persuaded by Mr Burmester’s assertion that beyond performing road tests, quality control and vehicle diagnosis with other technicians in a training capacity and improving the warranty claim process, he was not required to perform ‘hands on work’. This was not borne out in the main activities/tasks outlined in either the Employment Letter of Offer dated 22 March 2022, or the Employment Letter of Offer dated 23 February 2023, even though Mr Burmester received a pay increase of approximately 5.9% and the latter document recorded the changed position/job title of “Foreman/Master Technician” with effect from 1 March 2023. While I have noted that both Mr Burmester and the lawyers he engaged in relation to the workers’ compensation application listed the duties they asserted were required of Mr Burmester in virtually identical terms, these did not correspond with the main activities/tasks outlined in both Employment Letters of Offer and, in particular, how they contemplated physical servicing, maintenance and repair work and the provision of assistance to staff in the performance of their duties. Mr Burmester was tasked with the same main activities/tasks in both Employment Letters of Offer and these documents specifically included the following:
• “General repairs and service of motor vehicles as directed by Service Manager. All repairs to be carried out in a safe and expedite manner. Be able to complete most jobs on time or under book times”;
• “Carry out basic vehicle maintenance and service and to report directly to the workshop manager whenever a task cannot be done”;
• “Aim to complete most jobs in-line with better than book time for that task”;
• “Follow correct procedures when carrying out service work”; and
• “Legibly complete all paperwork with all details regarding works carried out and/or parts ordered.” 25
[25] There was no subsequent, material change in the amount of time Mr Burmester subsequently spent ‘on the tools.’ The material before the Commission satisfies me that the time Mr Burmester spent ‘on the tools’ throughout his employment was not inconsiderable. It was also relatively consistent. Contrary to the assertions of Mr Burmester regarding the extent to which he was required to perform ‘hands on work’, there was the evidence from Mr Clark and Mr Fitzgerald in relation the productivity weighting system the Respondent assigns to its Service Technicians (100% productive time), Master Technicians (50% productive time) and Foremen (20% productive time). This productivity weighting is an internal measure which comprises the weighted time available to be booked to customers of the Respondent. It represents ‘hands on’ productive time arrived at through an analysis of the codes an individual employee allocates to the daily tasks they complete, and how much of these tasks can be sold to customers, that is then matched against their actual hours of work (inclusive of overtime) recorded in the time and attendance records for the calculation of wages.26 Mr Clark produced data which suggests that Mr Burmester’s total costed productivity levels during his tenure with the Respondent averaged 46.77%, and that this did not fluctuate greatly between the periods of his initial 13 months of employment (48.35%) and the 26-week period that preceded the letter from Dr Cakra dated 28 February 2024 (42.96%).27 These levels were not impugned by Mr Burmester.
[26] I am satisfied, having regard to the Employment Letter of Offer dated 22 March 2022 and the evidence of Mr Dikkenberg that Mr Burmester was engaged as a Master Technician, on a promise to become the foreman if and when that position became available, and things went well. At all material times, Mr Peter Jennings was the incumbent foreman and remained employed as such on a full-time basis, save that on occasion, Mr Burmester provided cover when Mr Jennings was absent from work. It is also significant that notwithstanding the change in Mr Burmester’s position/job title to “Foreman/Master Technician”, Mr Jennings continued on a full-time basis in the role of Foreman on and from 1 March 2023, with a job description that continued to differ from Mr Burmester’s in terms of its responsibilities, overall purpose, main activities/tasks and specific responsibilities.
[27] As to assessing Mr Burmester’s capacity to perform the inherent requirements of his substantive duties, the evidence before the Commission was mixed.
[28] Both parties submitted extracts from a medical report from Dr Timothy Stewart (Consultant Occupational Physician). Mr Burmester relied on the following extract, which he says came from a report dated 9 May 2024:
“Do you consider that Burmester will be able to return to his full pre injury role of Master Technician/Foreman and if so, are you able to say when this is likely to occur.
I believe that Mr Burmester was a work capacity that would need to be explored and worked through with his employer. Mr Burmester says that he was not working in that position. As to his actual role there was some disputation between Mr Burmester and
his employer as to whether he was in an administrative teaching role or whether he was performing mechanical work.
Were he the Master Technician/Foreman, I believe he would not have experienced the problems that he has experienced. Mr Burmester maintains that he was in a hands-on mechanical position.”28
(bold emphasis in original, my emphasis underlined)
[29] Further extracts said to have come from the report of Dr Stewart dated 9 May 2024 were relied upon by the Respondent, and outlined:
1) Mr Burmester suffers with mechanical and nonspecific pain associated with degenerative disease of the vertebral column and these degenerative changes are longstanding and did not result from his employment with the Respondent; and
2) Employment was not the major or most significant factor in the development of Mr Burmester’s current condition, and he would be in the same position without the incident said to have occurred on 19 February 2024.29
[30] As I understand it, the report from Dr Stewart was obtained for the purposes of assessing Mr Burmester’s workers’ compensation claim. Further, it would seem that at the time it was obtained, Mr Burmester was not attending for work. My capacity to assess the probative value of Dr Stewart’s opinion is compromised because neither party provided his full report.
[31] The most comprehensive medical opinion available in evidence was that of Mr Burmester’s treating general practitioner, Dr Cakra. This evidence went to Mr Burmester’s diagnosis and prognosis as at the beginning of March 2024. Dr Cakra diagnosed Mr Burmester as having permanent and degenerative disease of his cervical spine and lumbar spine which will be subject to flare ups but is treatable with rest and medication, opining that this will gradually get worse over time. Having reviewed the position description of Mr Burmester attached to the Employment Letter of Offer dated 23 February 2023, Dr Cakra observed that the duties involved general repairs and service of motor vehicles, and that Mr Burmester had confirmed these “would involve manual/heavier tasks.”30 As to the duties, Dr Cakra stated that Mr Burmester could perform them, but he would need some adjustment or assistance.
[32] The adjustment or assistance referred to by Dr Cakra was the suggestion that Mr Burmester be placed, if possible, in more of an “assistance” role when it comes to performing manual tasks so as to reduce stress on his spine. An alternative measure suggested by Dr Cakra was for Mr Burmester to avoid heavy overhead lifting and have access to higher hoists.31 As noted above at [8], Dr Cakra had earlier advised the Respondent, by letter dated 28 February 2024, that Mr Burmester needed to avoid repetitive/strenuous flexing or extending his neck and lower back, which meant no bending or working under a vehicle and, further, that he was suited to a supervisory role.
[33] As has been outlined by the Full Bench of the Commission in Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes:
“In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.”32
(my emphasis, reference omitted)
[34] I am satisfied that Mr Burmester’s substantive role of Foreman/Master Technician required him to allocate a regular and substantial amount of his working day to ‘hands on’ servicing, maintenance and repair work. Dr Cakra suggested that Mr Burmester would need some adjustment or assistance to be able to perform the inherent requirement of his substantive role and to prevent his condition from getting worse, suggesting that Mr Burmester be moved into more of an “assistance role” that relieved him of manual tasks. It is also open to discern that the opinion of Dr Stewart regarding Mr Burmester’s capacity to return to work may have been that he be placed in an “administrative teaching role.” Having regard to this medical evidence, I consider it was open to conclude that Mr Burmester was not capable of performing the inherent requirements of his substantive role of Foreman/Master Technician.
[35] Dr Cakra expressed the view that Mr Burmester’s condition is permanent, degenerative and gradually going to get worse over time and stated that without modification to his current role, Mr Burmester’s condition will likely worsen. Dr Cakra suggested that this potential deterioration would be slow if Mr Burmester continued in his current role unmodified and that he did not expect Mr Burmester “to get injured or disabled within 1-2 years but more like in 5- 10 years just as a rough guide.” 33 This leads me to also conclude that Mr Burmester would not be able to perform the inherent requirements of his role in the future.
[36] As to whether there was some reasonable adjustment which could be made to Mr Burmester’s role to accommodate any current or future incapacity, I note that Mr Jennings continues to serve as the Foreman in a full-time capacity and accept that the Respondent does not require, and nor can it sustain, two Foremen at Mr Burmester’s former place of work. I have also noted that Mr Jenning’s costed productivity levels as foreman during Mr Burmester’s total tenure with the Respondent averaged 27.09%.34 While this reflects the different roles they were engaged to perform, it also indicates there was also a not insignificant component of ‘hands on work’ imposed on Mr Jennings as well. I have noted the evidence of Mr Edwards that the position of Foreman is physical and that a Foreman can at times be required to work under a vehicle with a hoist, or contort themselves under a dashboard or bend over an engine bay.35 I also note that when detailing of the staffing structure in its workshop, the Respondent referred to the non-productive roles and their responsibilities and I observe that during the period between the commencement of Mr Burmester’s employment and Mr Burmester’s episode at work on 19 February 2024, the Respondent engaged two “additional non-productive roles.”36 In this regard, the Respondent had advised Mr Burmester in its letter of 26 March 2024:
“Given that these two additional roles have a similar focus to the role you are seeking, that being to support, train and mentor staff, it is the view of the Company that, regardless of your noted and valued expertise, we are not able to create an additional nonproductive role.”37
[37] I further note that Mr Clark gave the following evidence, which was not challenged:
“Then if we go to 186 I actually tried to look at that from unapplied time, available hours to try and assess how is the department actually tracking, and that still reflected the fact that when we look at gross per day per employee, so that means how much income each employee was generating in the business, there was a peak which came around the December period, December 2022 period, to probably February 2022, but then there has been a general decline, an average consistent decline, in the gross each employee’s contributing to the business.
Now, I haven’t included in these figures, or haven’t made this observation, the service department at Campbell Street is a multimillion dollar operation that charges out or does an enormous amount of work. Last financial work the department only made
$74,000. Michael’s wages were in excess of that. When we look at could we absorb and create an additional non productive role for Michael, it was not financially viable.”38
[38] On the basis of this evidence, I am not persuaded that changing Mr Burmester’s role into one that could accommodate both his physical limitations and prognosis would have constituted a reasonable adjustment. Even if Mr Burmester devoted most or all of his working time to diagnosing service, maintenance of repair work, another technician would be required to perform those components of the diagnosed works that lie outside the limits of his physical capability. Having regard to the evidence that was given relating to the performance of software updates, I am not persuaded that adjusting the way in which such work is allocated so that it all would be henceforth performed by Mr Burmester would have kept him in a viable full-time position. This is because the volume of software update work that might be available is dependent on the volume and timing of bookings made and in certain circumstances, it will be more efficient to have a particular software update performed by the technician who is also responsible for completing a range of other tasks required to be performed on a vehicle.
[39] As to the question of the hoists that Mr Burmester might use in the Respondent’s workshop, I accept the Respondent’s evidence that they all have the same lifting capacity and in particular, the same length/stroke hydraulic cylinders. I note that this equates to a 1896mm lifting height, which can be increased to over 2000mm using adaptors, and depending on the vehicle.39 I also accept that the height to which a particular hoist might be raised varies according to the height of the roofline under which it is located and the particular vehicle that is being worked on. The evidence suggested that while certain jobs could conceivably be allocated to Mr Burmester using a hoist located in a particular place within the workplace that would best accommodate his height, this would sometimes only be able to be done once an initial diagnosis of the mechanical issue had been completed and even then, Mr Burmester would still be required to move his neck in order to look upwards when performing the necessary work. I accept that some neck movement would still be required even if the Respondent found a different type of hoist but further note that this also assumes that any requisite capital expenditure on the part of the Respondent to acquire and install it would be both affordable and reasonable.
[40] Finally, with Dr Cakra having expressed the view that Mr Burmester’s condition is permanent, degenerative and gradually going to worsen over time, I consider it is not
unreasonable to assume that more adjustments would be required to accommodate his future incapacity.
[41] Having regard to these various considerations, I am persuaded there was a valid reason for the termination of Mr Burmester’s employment and that this weighs against a finding that his dismissal was unfair.
Notification of ‘that reason’ – s.387(b) of the Act and Opportunity to respond to ‘any reason’ related to the capacity or conduct – s.387(c) of the Act.
[42] Consideration of s.387(b) of the Act in this matter requires asking whether Mr Burmester was notified of ‘that reason’, which is a reference to the valid reason(s) referred to in s.387(a) of the Act. I note the 26 March 2024 Letter foreshadowed the reasons why the Respondent was considering the termination of Mr Burmester’s employment at that time and that these reasons were essentially the same as those outlined in the Termination Letter. I am therefore satisfied that Mr Burmester was notified of the valid reason. As to the respects in which the reasons outlined in the Termination Letter differed, I consider the differences did not alter the underlying basis for the Respondent’s decision to dismiss Mr Burmester. Rather, they covered the Respondent’s response to Mr Burmester’s purported request for what the Respondent described as a ‘non-productive role’, the Respondent’s views about the utility of rehabilitation and/or a leave of absence and the viability of installing a higher hoist. In this case, I do not consider the s.387(b) consideration weighs in favour of a finding of unfairness.
[43] The meeting which took place on 26 March 2024 and, more particularly, the 26 March 2024 Letter afforded Mr Burmester an opportunity to respond and provide any additional information that he wanted the Respondent to consider before a decision was made regarding his fitness for work. The 26 March 2024 Letter referenced the correspondence that had passed between the Respondent and Dr Cakra and the specific aspects of Dr Cakra’s opinion which had formed the basis for the Respondent’s views. The 26 March 2024 Letter also outlined other information upon which the Respondent was basing it view that it had no choice but to terminate Mr Burmester’s employment. Further, an email sent by the Respondent to Mr Burmester on 5 July 2024 requested his attendance at a meeting on 9 July 2024, at which he was to have the same opportunity to respond and provide any additional information. The Respondent subsequently rescheduled the proposed 9 July 2024 meeting, but Mr Burmester stated that, based on legal advice, he would not be attending the rescheduled meeting on 10 July 2024. At this point, Mr Burmester was cautioned that if he failed to attend, the Respondent was of the view that it would have no choice but to determine the matter based on the information it had “at hand.”
[44] Having regard to the circumstances of this case, I am satisfied Mr Burmester was on notice of the prospect of his dismissal and the underlying reasons as to why it was being considered prior to the decision to terminate his employment being made. In terms of the s.387(c) consideration under the Act, I am satisfied Mr Burmester was given an opportunity to respond to the reasons related to capacity that the Respondent gave for his dismissal and as such, it is not a factor that weighs in favour of a finding of unfairness.
Any unreasonable refusal by the employer to allow a support person – s.387(d) of the Act
[45] Mr Burmester’s has expressed concern that he was not advised that he could have a support person at the meeting on 26 March 2024 until it was due to begin but also indicated that he did not otherwise ask to have a support person attend.40 There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”41
[46] The facts of this case do not disclose that there was any unreasonable refusal to allow Mr Burmester a support person to be present to assist at any discussion relating to his dismissal. Accordingly, I find this consideration to be a neutral consideration.
Warnings regarding unsatisfactory performance – s.387(e) of the Act
[47] As Mr Burmester was not dismissed on the basis of unsatisfactory performance, this factor is not a relevant consideration.
Impact of the size of the employer on procedures followed – s.387(f) of the Act and absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g) of the Act
[48] I have noted that the Respondent had 380 employees at the time of Mr Burmester’s dismissal and that it has not submitted s.387(f) of the Act is a relevant consideration. I do not consider the Respondent’s size impacted on the procedures followed in any discernible respect. In terms of s.387(g) of the Act, I observe that the Respondent had access to Mr Clark (People and Culture Manager of the Respondent) at the material times. As such, s.387(g) is not a relevant consideration in this case.
Other relevant matters – s.387(h) of the Act
[49] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[50] Mr Burmester argued that he was not allocated the duties he was hired to perform, and that the Respondent’s workshop was under-resourced, which resulted in him having to perform more work on the tools than he was obligated to carry out. Mr Burmester also claimed he received no support from the Respondent and suggested that the process by which his employment was terminated was rushed, with the result that the possibility of him working part- time was neither considered nor discussed. Mr Burmester asserted that while he was absent due to his injury, he was directed not to attend the workplace and discuss possible solutions with his work colleagues and proffered that he could have been considered for the position that had been created for the administration of warranties which was offered to someone else.
[51] As to these matters:
1) Mr Burmester was primarily employed as a Master Technician and both Employment Letters of Offer discussed above outlined the requirements that he engage in physical servicing, maintenance and repair work, carry out the duties and responsibilities in his job description and perform any other role within his skills, competence and training, when directed to do so;
2) The evidence going to the performance of the business did not suggest the business was under resourced and instead suggested that the Respondent had virtually no capacity to absorb an additional role in its workshop operations that was ‘non-productive’ in commercial terms;42
3) Mr Burmester conceded that he himself did not raise part-time work during the pre- dismissal dialogue but in any event, I note the Respondent gave some consideration to a part-time teaching role, but ultimately concluded it was not viable;43
4) Mr Burmester’s workers’ compensation claim process appears to have had the effect of placing the parties’ dialogue and the assessment of other options on hold, but once resolved, the Respondent sought to resume dialogue with Mr Burmester;
5) When the parties were able to engage in dialogue, Mr Burmester had a tendency to focus almost exclusively on the Foreman role;44
6) Although he was invited to do so and was given a number of opportunities, Mr Burmester elected not to meet and discuss his employment circumstances and nor did he provide any information in response to the matters the Respondent raised in the 26 March 2024 Letter beyond his own conception of the duties of his substantive position that he had first provided on 13 March 2024; and
7) The Respondent addressed the administration of warranties position, which appeared to have been raised by Mr Burmester for the first time at the determinative conference, by stating it was located at another site in an outer suburb of Hobart and that it had become available when Mr Burmester was absent from work and pursuing his workers’ compensation claim.
[52] Mr Burmester was clearly a very conscientious worker for the Respondent who took great pride in his work. Mr Burmester actively assisted and trained the more junior employees and made a significant contribution to the operations of the workshop by applying his diagnostic skills. His valuable contribution was freely acknowledged by Mr Clark, Mr Kerr, Mr Fitzgerald and Mr Edwards. There were no efficiency or productivity issues asserted by the Respondent in relation to Mr Burmester’s work performance and Mr Burmester clearly enjoyed working as part of the Respondent’s team. Apart from the financial impact consequent on losing his employment, Mr Burmester has had to cancel his residential lease and is grappling with the reality of pursuing new employment in a location where the opportunities for him to maximise his experience as a Master Technician of Volkswagen vehicles are limited. It is evident that Mr Burmester is a man of character who is striving to manage the challenges of his physical condition without giving up his pursuit of alternate employment. This includes exploring employment in a teaching/training capacity, something with which the Respondent has offered to assist.
Conclusion
[53] As outlined above, I have been persuaded there was a valid reason for Mr Burmester’s dismissal related to his capacity. I am satisfied that Mr Burmester’s substantive role of Foreman/Master Technician required him to allocate a regular and substantial amount of his working day to ‘hands on’ servicing, maintenance and repair work. Having regard to the medical evidence before the Commission, I consider it was open to the Respondent to conclude that Mr Burmester was not capable of performing the inherent requirements of his substantive role at the time of the dismissal or at some time in the future. As to adjustments which could have been made to Mr Burmester’s duties to accommodate his current and future incapacity, I have not been persuaded those identified were reasonable, despite Mr Burmester’s various suggestions and the range of considerations that were contemplated by the Respondent. To reorganise the various tasks within the workshop so Mr Burmester could avoid duties that were unsafe for him to perform would have represented a transformation of his substantive position into one modified and restricted in order to accommodate his impairment. It would have required constant monitoring and the involvement of other technicians. For example:
1) Even if Mr Burmester could be allocated work at hoists that could be raised to maximum height, he would still be required to bend his neck to look up while performing his work;
2) The volume and timing of software updating work was not consistent and nor could it be easily grouped with training and diagnostic work so as to create a sustainable fulltime position;
3) Restricting Mr Burmester to work that was ‘safe’ for him to perform would require other technicians to be on hand to cover and complete the more manual tasks a given, assigned job required; and
4) The Respondent had virtually no capacity to absorb an additional role in its workshop operations that was ‘non-productive’ in commercial terms.
[54] I am satisfied that Mr Burmester was notified of the valid reason for his dismissal and given an opportunity to respond. I am also satisfied that none of the factors in ss.387(d)-(g) of the Act are enlivened in this case in a manner that weighs in favour of a finding of unfairness. As to the matters falling within s.387(h) of the Act, I do not consider that they so strongly outweigh the other factors in s.387 so as to favour a finding that Mr Burmester’s dismissal was harsh, unjust or unreasonable. The sad reality that has confronted the parties in this case is that Mr Burmester has a permanent, degenerative arthritic condition affecting his neck and back that has rendered him unfit to perform the volume of physical labour that was an inherent requirement of his substantive role. Mr Burmester’s physical condition was only going to worsen, and I have not been persuaded that there were reasonable adjustments which could have been made to his substantive role to accommodate his current or future incapacity.
[55] Having made findings in relation to each matter specified in s.387 of the Act and given due weight to each, I am satisfied the dismissal of Mr Burmester was not harsh, unjust or unreasonable. Accordingly, I find that Mr Burmester’s dismissal was not unfair. As I have found that Mr Burmester’s dismissal was not unfair, his application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.”
Burmester v JMC Automotive Group Pty Ltd [2025] FWC 229 delivered 29 January 2025 per Clancy DP