Employer’s inherent requirements unreasonable

Martin v TNT Australia Pty Ltd T/A TNT [2017] FWC 440 concerned a dispute about an employee’s ability to perform the inherent requirements of his role as a bulk freight delivery driver and whether the inherent requirements nominated by the employer were reasonable.

After undergoing a total knee replacement and obtaining a medical clearance from his general practitioner to return to work, the employer requested the employee undergo a second medical assessment.

The parties agreed on the following questions for determination for the assessment:

(a) Is the employee fit to perform the inherent requirements of the role of a bulk driver with TNT?

(b) Should the employee be returned to his role immediately with appropriate ‘work hardening’ as recommended by medical evidence?

What were the inherent requirements?

The employer relied on a ‘core physical demands document’ which stipulated a range of inherent requirements in determining that the employee was not fit for his role.

The employee argued that the nature of inherent requirements is that they must be ‘an essential feature or requirement of a role, and must be reasonable and objectively assessed’.

Relevantly, the employee argued that the evidence established that the ‘inherent requirements’ relied on by the employer were not and, in fact, could not be, the inherent requirements of the employee’s role and that compliance with the core physical demands document would cause employees to breach other safety procedures, with possible consequences for disciplinary action.

The employer had implemented a safe system of work in respect of manual handling, including that employees not lift freight alone that exceeds 20 kg or that is awkward in shape or size.

The Commission held that the assessment of inherent requirements for a bulk driver must take into account; the employees, the nature of the job and tasks in combination with the reasonable accommodations, for example, the lifting aids available and other manual handling procedures and practices.

The Commission said that the employer left it to drivers to assess the risk of moving each heavy item, and that lifting very heavy items was not an essential requirement of the worker’s role, stating that:

If they are unable to safely lift an item it is further up to the driver how to safely perform the work; be it by use of a pallet jack, trolley or other aid, a fellow worker or by making arrangements for the safe delivery of the item.

The medical evidence further established that the employee was able to lift at least 25 kg. Therefore, the commissioner found the worker was fit to work as a bulk delivery driver, and ordered that he return to his role with the appropriate ‘work hardening’, as recommended by the medical evidence.