A recent Fair Work Commission (FWC) case has served as a reminder of what employers should not do when they are concerned that an employee can’t fulfil the inherent requirements of their job.
Background
In Rodney Billett v West Coast Council [2016] FWC 4252, 51 year old Rodney Billet, who had a largely unblemished employment record, injured his ankle at work. After a couple of days sick leave, Mr Billet returned to work and later produced a medical certificate confirming he was fit for work with a slight modification.
The employer sent Mr Billett off for an Independent Medical Examination (IME) where the doctor involved determined that Mr Billett could complete the inherent requirements of his role if certain adjustments were made in the workplace. Despite this, the employer decided to terminate Mr Billet’s employment due to his physical incapacity.
The outcome
Mr Billet won his unfair dismissal claim and got his job back, with Deputy President Wells finding that:
- there was no valid reason for the dismissal (because modifications to the employee’s role could reasonably be made);
- the employer misinterpreted and misrepresented the findings of the IME; and
- Mr Billett was owed a fair go all round and therefore should have been given the opportunity to demonstrate through an on-site assessment that he could in fact fulfil the inherent requirements with some reasonable modifications in place.
Lessons to be learnt
- An IME is not a “get out of jail free card” for employers to dismiss employees – the findings of the IME must be considered and if adjustments can be reasonably accommodated then the employer cannot simply move to dismissal.
- When considering an employee’s capacity to perform the inherent requirements of their role, employers should remember that not all employees will carry out their duties in the same manner. Make sure you listen to and genuinely consider what the employee is actually saying to you in giving a fair opportunity to respond.
- If job modifications are temporary, make sure you document the temporary nature of the arrangement and keep on a path to eventual full capacity.
If you have any questions in relation to this issue, please don’t hesitate to contact us.
