In a recent case brought before the Fair Work Commission (FWC), Bunnings was vindicated in its decision to dismiss a worker due to lack of suitable job opportunities. The case is interesting in that it does show that Bunnings is willing to go to considerable lengths to accommodate its workers (as was acknowledged by the FWC), while it also indicates that working conditions in its warehouse stores can be quite difficult at times. It is also good to see a judgement such as this which openly acknowledges the efforts by an employer to be flexible in its employment practices, and indicates that there are clear limits to the flexibility that can be expected. The case The case, Reodica v Bunnings Group Limited [2014] FWC 6183, was adjudicated on 9 September 2014 in response to an application lodged by Mr Reodica on 6 February 2014. Mr Reodica began his employment with Bunnings on 27 November 2010 at its Auburn warehouse in New South Wales. He provided customer service, and assisted with restocking activities, including driving a forklift. In October 2011 he suffered a hernia while assisting a customer in lifting items. After surgery in March 2012 he was advised to avoid lifting items weighing more than 10 kg. When he returned to work in July 2012 he was assigned duties as a gatekeeper at the Auburn store. According to the testimony of Mr Reodica these activities took place in: ... a new relocated area that was over exposed to the cold temperature, wind gust and rain gust. As a result, I developed all body pains and mouth with sore gums and teeth problems. This resulted in Mr Reodica lodging a workers compensation claim in August 2012. Bunnings reassigned Mr Reodica to duties operating a cash register at various locations in the warehouse. In September 2012 he claim Mr Reodica had lodged was declined. Bunnings ceased to offer him these light duties in October 2012. He subsequently did not work between October 2012 and February 2013 on the basis that he was not offered suitable duties. In January 2013 the Workers Compensation Commission instructed Bunnings to offer Mr Reodica light duties. In the same month his doctor issued him with a medical certificate stating he was fit to return to the same duties he had before suffering the hernia. Mr Reodica stated he did not agree with this diagnosis. He further stated that he believed the Bunnings manager had put pressure on the doctor to issue him with a full medical clearance in February 2013. When Mr Reodica returned to work in February 2013 he was still on restricted light duties, working as a cashier at the Service Desk. On 4 Februrary 2013 he cracked a tooth, and informed Bunnings he would need specialist dental treatment before returning to work. This would prove to be the last day he performed actual work for Bunnings. Mr Reodica informed the Bunnings Auburn store manager that he was ready to return to work in June 2013. However, he also insisted to the store manager that the 10 kg lifting restriction would remain in place, and he would not work in areas with a temperature of less than 22 degrees Celsius. He also agreed in later questioning that he did not at that time have medical clearance to return to work, and that he could not agree to return to work at the time as his treating physician was on leave until later that month. He was told he would be transferred from the Auburn store to the Castle Hill store, as the Auburn store was closing. The Castle Hill complex manager for Bunnings, Damien Hannaford, met with Mr Reodica on 13 January 2014. According to Mr Hannaford: During the meeting I asked If you come back to work, how will it affect your teeth? He responded words to the effect that [he] needs to work inside, out of the cold and wind and it would need to be 22 degrees. I responded It it is windy, how would you serve our customers? He responded to the effect that [he] would put on a face mask to keep the wind away from [his] face and teeth. Mr Hannaford continued his testimony: I consulted with the State Human Resources Coordinator and determined that Mr Reodica was unable to perform the inherent requirements of his role. I also determined that there were no changes that could be made to his role that would accommodate his medical restrictions. Specifically in a written submission Bunnings defined this difficulty: The respondent terminated the applicants employment verbally on the basis that they couldnt guarantee that there would be no wind or that the temperature within the store would always be at 22 degrees Celsius or above. At a meeting on 16 January 2014 Mr Reodica was informed further employment would not be made available. According to his testimony: I offered to work anywhere in the store. I was dismissed on the basis the respondent could not guarantee that it would not be windy inside the store. I was not even given the opportunity to get a medical certificate. Adjudication Fair Work Commissioner M. Roberts cited two main cases in making his decision. The first was J Boag and Son Brewing Pty Ltd v Allan John Button 30 (Boag) When an employer relies upon an employees 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 that must be considered. J Boag The second was X v Commonwealth: The reference to inherent requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral [reference omitted]. Further, the reference to inherent requirements would deal with at least some, and probably all, cases in which a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work. X v Commonwealth Commissioner Roberts found that the dismissal was justified. He stated that: All in all, I therefore find that there was a valid reason for Bunnings to terminate Mr Reodicas employment on the basis that he was no longer able to perform the inherent requirements of his job. Commissioner Roberts further found that Bunnings had not harsh, unjust or unreasonable. He stated that: It is clear that Mr Reodica was notified of the reason for the termination of his employment during the Companys meetings with him on 13 and 16 January 2014 and I so find. It does not appear that Mr Reodica was denied an opportunity to respond to the Companys conclusion that he was unable to perform the inherent requirements of his job. He knew that the Company was reviewing his position and did not provide it with any medical evidence which could have led it to form any other conclusion than the one it did. Given the evidence of Mr Reodica, it is difficult to see any likelihood that any argument he would put to the Company would have had any prospect of changing the Companys mind as to the termination of his employment. Analysis Smart Company quotes the Bunnings employee relations manager Judd Young as stating: While we regret the situation in which Mr Reodica finds himself, we believe the decision made by the Fair Work Commission was fair. Smart Company further quotes Andrew Douglas, a partner at M+K Lawyers as saying: Its incredibly common to have good employer behaviour, for them to be generous and continue to try to work with employees, whether they are injured at work or outside of work. We hear about all the terrible cases where someone with cancer has been terminated, which would lead us to believe Australia is filled with terrible employers but quite the opposite is true. Perhaps the most telling part of the adjudication is this paragraph from Commissioner Roberts: Wherever the evidence of Mr Reodica conflicts with that of Mr Hannaford, I am satisfied that the evidence of Mr Hannaford is to be preferred. I do not consider that Mr Reodica was untruthful during proceedings but I believe that his evidence was coloured by a belief that he was treated badly by Bunnings
Posted on: Thu, 16 Oct 2014 11:33:32 +0000
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