AMMA Principal Employee Relations Consultant Peter Cooke examines a recent case where a freight company’s appeal against an order to reinstate a driver determined to be unfit for work has been quashed by a Fair Work Commission Full Bench majority decision.
TNT AUSTRALIA sought leave to appeal the original decision on grounds that included that medical evidence had been wrongly interpreted, a company document on the physical demands of a delivery driver had been misunderstood, and that the role’s inherent requirements hadn’t been established.
The appeal was dismissed by the three-member bench, with the original order for the bulk delivery driver to be reinstated with ‘work hardening’ remaining in place.
TNT was ordered to reinstate the employee who was stood down in 2014 after injuring his knee. He underwent a total knee replacement in April 2015 and sought to return to work five months later.
The employee supplied a medical clearance, but TNT advised they required a further functional assessment and a fitness for duties assessment.
As a result of the assessment, TNT cited ‘reasonable concerns about (the employee’s) ability to safely carry out the inherent requirements of his role’.
In a letter to the employee, TNT said that due to the company’s freight profile, it reasonably required drivers to be able to lift 40kgs floor to waist, 30kgs waist to shoulder and 20kgs above shoulder.
“The results of the assessment indicate that you are unable to safely perform the inherent physical requirements of your current role and impose significant restrictions on the kind of work that you can safely perform at TNT,” the letter to the employee said.
The driver then issued an application to the Fair Work Commission for resolution of a workplace dispute.
This was heard by Commissioner Paula Spencer in January 2017, where she found TNT did not provide enough evidence to demonstrate that the driver could not meet the inherent requirements of the role; that there was no evidence these ‘inherent requirements’ were required in practice; and that the concluding medical assessment was conducted ‘unfairly’.
She ordered TNT to immediately reinstate the driver to his position with ‘appropriate work hardening’ as recommended by the occupational physician used by TNT in the case.
TNT lodged permission to appeal.
Majority decision – driver to be reinstated
The application to appeal was heard by a full bench comprising Vice President Joe Catanzariti, Deputy President Anne Gooley and Commissioner Michelle Bissett.
DP Gooley and Commissioner Bissett agreed with Commissioner Spencer’s finding that she wasn’t satisfied ‘that TNT has established that the ability to lift weights of over 40kg, unaided, is an essential requirement of the position of Bulk Driver as it relates to the (employee)’.
They also found Commissioner Spencer did not err in ordering reinstatement.
Deputy President Gooley and Commissioner Bissett said the case didn’t warrant reconsideration and was satisfied with Commissioner Spencer’s rejection of lifting 40kg weights being an inherent requirement of his position.
“The Commissioner had regard to totality of the medical evidence,” Deputy President Gooley and Commissioner Bissett said.
“Given her findings about the inherent requirements of the position the evidence was not inconsistent with her conclusion that (the employee) could in fact perform the inherent requirements of the position.”
The application to appeal was dismissed.
VP Catanzariti backs TNT
In his minority decision, Vice President Joe Catanzariti found TNT’s challenge should have been upheld.
He concluded Commissioner Spencer was wrong to exercise her discretion by allowing ‘extraneous or irrelevant matters to guide or affect’ her during the hearing.
VP Catanzariti referenced the lifting limits in TNT’s Physical Demands document and highlighted drivers “must be able to withstand in the course of an ordinary or routine shift”.
He said the Commissioner referenced and relied upon medical evidence that did not establish whether the injured worker could lift at least 25kgs.
“A driver is expected to be able to pick up and deliver, for the vast majority of their time on their own, parcels that fall within those (20 to 40kgs) limits,” he stated.
“Rather, the medical evidence of Dr (Christopher) Cunneen stipulates that if the (employee) were to lift more than 20kgs unaided, this would pose significant risks of further work-related aggravations to his pre-existing lumbar spondylosis.
“As such, the Commissioner erred in reaching this conclusion which formed part of the basis upon which she found that the (employee) could perform the inherent requirements of a Bulk Driver with the (TNT).”
Implications for employers
It is disappointing that the Full Bench in this case has overridden the employer’s determination of whether the employee, who suffered a significant injury and subsequent knee replacement, would be fit to return to his duties.
AMMA’s position is that the right to make such determinations should rest solely with the employer and certified medical practitioners, subject to protections and clauses of employment contracts and enterprise agreements.
In our view, the FWC may be setting a dangerous precedent in relying heavily on its members’ subjective assessments based on “extraneous or irrelevant matters to guide or affect” of a worker’s capabilities, and on things like “reasonable accommodations”, “likely scenarios” and “how often one might be required to handle heavy freight”.
This case also reinforces the utmost importance of providing substantive evidence to the commission in dispute resolution matters, for example evidence of inherent requirements of roles, duties and capabilities when disputes arise over fitness for work.
AMMA’s workplace consulting team specialise in fitness for work and unfair dismissal matters. For information or support please contact Principal Workplace Relations Consultant Peter Cooke.