Terminating Injured Workers


Forbes Australia Pty Limited t/as Hunt Boilers recently had a claim made against them for an unfair dismissal following the termination an injured worker. Section 394 of the Fair Work Act 2009 provides that a dismissal is unfair if it is harsh, unjust or unreasonable.

Fair Work Australia rejected the claim. The decision demonstrates that a dismissal is not necessarily unfair when a worker is terminated.  In this case it was because an injury prevented the employee from performing the inherent requirements of his position or role.

 Michael Harte was employed by Forbes Australia Pty Limited t/as Hunt Boilers as a technician. Mr Harte seriously injured his foot at work in December 2004. Upon returning to work in August 2006, Mr Harte performed office based duties before resuming his technical role. In November 2007 Mr Harte was promoted to a service technician, level 2, and by December he was promoted to the role of Service Supervisor - Mechanical (SSM).

Then Harte had further surgery to his injured foot to remove a plate. Following this surgery he came to the view that his foot would never fully recover to its pre-injury status. He settled a permanent disability claim.

 The employer wrote to the treating doctor and Harte expressing its concern that Harte would not be able to return to his duties that he had before his injury. In April 2011 Harte was given five weeks notice of termination. The reason for the termination was that Harte could no longer perform the inherent requirements of his job. Harte claimed that his dismissal was unfair.

 The question for Fair Work Australia was whether or not there was a valid reason for termination of Harte’s employment. Was he unable to perform the inherent requirements of his job? Harte claimed that he could perform the inherent requirements of his position.

 The Commissioner noted that 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.

The Commissioner noted that it was necessary to identify Harte’s substantive position and the tasks he was required to undertake in that position. Forbes argued that Harte’s substantive (pre-injury) position was a service technician however the Commissioner found that the substantive position was the position that he was promoted to namely as service supervisor.

 The Commissioner noted that Harte’s capacity to fulfil the inherent requirements of his job (position) must be considered against the substantive position unmodified by any return to work plan that had been put in place. The Commissioner noted that that role included the need to work at heights, climb ladders, lift weights either alone or assisted and undertake work requiring some degree of balance while working on boilers.

After balancing the medical evidence and the evidence of Michael Harte, the Commissioner came to the conclusion that he was not fit for the inherent requirements of his job and in particular could not perform site work. Accordingly his incapacity was found to be a valid reason for the termination of his employment and there was no unfair dismissal.

 Whether or not a dismissal of an injured worker is unfair will rely on an examination of their substantive role and the tasks in that role, whether or not they are fit for the inherent requirements of that role. If a worker is not capable of fulfilling the inherent requirements of their job or position an employer can validly terminate the worker’s employment. 

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