Return to Work Decision Splits Fair Work Commission
News 8 June 2017

Return to Work Decision Splits Fair Work Commission

A Fair Work Commission (FWC) full bench has rejected a business’s request to appeal a prior decision that reinstated an employee considered to be fit to carry out their role following a medical absence.

The employee, who has been with the organisation since 1996, was stood down without pay in early 2014 after concerns were raised over his fitness to perform the inherent requirements. He had sustained an injury to his knee and had been on light duties whilst pursuing a workcover claim. This claim was unsuccessful and the employee remained on leave in line with the businesses leave policies.

In April 2015 the employee underwent a knee replacement and within 5 months was cleared by his doctor to return to work. However, the driver was advised by the business that further assessments were to be carried out to ensure that he was fit to return to his normal role.

Following these additional assessments, the employee was notified in a meeting in March 2016 that he was “unable to safely perform the inherent physical requirements of your current role”, adding that the employee would be terminated should no suitable alternative roles be identified. In assessing the driver’s ability to return to work, the business had also relied on the potential exacerbation of a previous back injury, an injury that was not initial reason for the assessment.

In the initial hearing, the Commissioner identified that the inherent requirements stated by the business for the Bulk Delivery Driver position, were not the inherent requirements in practice. The organisation left it to their drivers to decide how to safely carry out their work and lifting exceedingly heavy items was not considered to be an inherent requirement of the role, a key factor in assessing his capacity

The Commissioner went on to note that the way in which the medical assessment was conducted was unfair to the employee as it did not establish that he is limited in performing the duties identified. She confirmed that the driver was fit to perform the inherent requirements of the role and that the employee should, with appropriate ‘work hardening’, be immediately returned to his role.

Based on these findings, the business lodged an appeal to determine whether the Commissioner had correctly applied and interpreted the relevant principles in assessing whether the employee was fit to perform the inherent requirements of their role with them.

At first, the Vice President on the Full Bench found in the businesses favour, citing that he was satisfied there was an appealable error. He claimed the Commissioner erred in exercising her discretion by allowing extraneous or irrelevant matters to guide or affect her.

The appeal decision was however then referred to Deputy President Gooley & Commissioner Bissett to decide and it was ultimately dismissed.  It was found the Commissioner was correct in her initial decision. The pair agreed the employee was able to perform the inherent requirements of his position and should be reinstated with a graded return to work.

This case highlights the intricacies of answering a Fair Work Commission claim. In our Responding to Fair Work Commission Claims experienced consultants will share some of their secrets and experience to help you understand the process, from initial response to appeals process. Learn more about the types of claims the Fair Work Commission deals with and how to put your best foot forward to defend your business and keep costs down.

Written by Benjamin Cirona 

DECISION: Mr Stephen Martin v TNT Australia Pty Ltd T/A TNT

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