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Home > News > 2017 > May > Inherent requirements: employers misusing the term to ignore needs of staff

Inherent requirements: employers misusing the term to ignore needs of staff

Bad_interview_web_qual.pngWhen employers question whether or not their employees can carry out the “inherent requirements” of their role, they are questioning the employee’s ability to do their job.

IEUA-QNT Industrial Officer Danielle Wilson explains what this means for members and presents two cases.

As part of any employment contract, in accepting a position, our members are committing to their employer that they can do the job they are employed to do.

In this sense, they are accepting the inherent requirements of the role.

However, it is important to note that inherent requirements does not mean all of the duties of the role, it means the essential duties of the role.

What employers are required to do

“Inherent requirements” meaning at law is usually associated with the impact of medical conditions or disabilities on the duties of a position.

Employers are required by law to genuinely consider what could reasonably be done to remove any barriers that prevent the carrying out of these essential duties for people who may have a medical condition or disability.

These reasonable changes are known as “reasonable adjustments”.

Additionally, employers have these obligations whether the condition is subject to a workers compensation claim or not.

Reasonable adjustments should respond to the specific needs of the person in the role.

Some examples include a change of location, change to working hours, modifications to equipment used in the role and additional training.

These adjustments are designed to address medical conditions and disabilities that are temporary or permanent.

The nature of the medical condition or disability will need to be considered as to what is reasonable in the short, medium and possibly long term.

For adjustments to be considered reasonable, they need to be affordable and practical.

These elements are determined by whether or not the employer has a reasonable capacity to comply.

Notwithstanding the need to provide adjustments, employees also need to be able to carry a capacity to work without putting themselves or their colleagues at risk.

Employers flexing their authority

While being defined as the essential duties of a role, “inherent requirements” is a defence open to employers who are subject to complaints of discrimination.

For this defence to be valid, they need to be able to show that even with reasonable adjustments to the role, the person cannot do the job.

It is at this point that we often see employers flexing their authority to demonstrate whether someone is or isn’t doing their job and determining their employability into the future.

Case Study 1: employer ignores member’s needs

A long-term teaching member in a single site secondary school suffered an ongoing medical condition that is common to teachers – muscle tension dysphonia.

This condition is a permanent impairment and the key to minimising any progression is to reduce the load on the voice.

Over time this meant reducing his face-to-face teaching, reduced supervisions in areas which required un-aided voice projection and a change in his cocurricular activities.

With a medical recommendation in hand, our member sought to reduce his load to four days per week, to replace playground duties with other classroom-based supervisions, to install a voice amplification system in one main classroom room for his timetabled classes, and make changes to his cocurricular activities.

Initially, the employer refused to acknowledge his condition, despite the member having an approved workers’ compensation claim.

As a result, our member bought his own amplification kit and set it up in a classroom.

He was able to negotiate to remain in this room for most of his classes, although this was done through negotiation with colleagues, rather than by any supportive direction from the school administration.

He was given approval to reduce his hours by one day temporarily, but after the first year, the employer wrote to him and advised of their belief that he was unable to carry out the inherent requirements of his role, and as a result, they were considering dismissal on medical grounds.

The employer’s argument was that he was engaged as a full-time teacher, and as he could no longer teach full-time and take on all the duties of his role, the employment contract was frustrated.

They advised that unless he could provide evidence that he could return to his substantive role, they intended to terminate him.

It was at this point that our member came to our union for help.

The employer attitude disappointed him greatly, as he had always thought his employer would be reasonable.

The employer was unable to provide any evidence that they had considered any and all possible options to accommodate the reasonable adjustments proposed.

It took the threat of formal action and a lesson in legal precedent adequately defining “inherent requirements” before the employer conceded that what they were proposing was unreasonable.

Case Study 2: employer lacks consideration of alternatives

In this case, our member, a school officer working in a primary school, witnessed a serious assault on a student by another student in the office where she worked.

Our member was diagnosed with posttraumatic stress disorder, and she was absent from school for two terms.

Upon negotiating a return to work, the employer advised that she would have to return to her role in the office.

Our member had a medical recommendation which stated she could not resume her usual role initially as the location of the office was an aggravating trigger of her condition.

Her doctor instead recommended that she undertake a suitable role elsewhere in the school on a graduated basis.

The employer refused to accommodate this adjustment, stating that they were unable to make the necessary arrangements to accommodate this request.

Our member contacted our union and we made representations on her behalf.

The employer was unable to demonstrate that they had made any attempt at all to consider any adjustments to her role.

They had not considered her suitability for any other role and had not canvassed other school officers who could have exchanged duties to assist our member’s return to work.

We submitted a complaint to the Anti Discrimination Commission on our member’s behalf.

Through conciliation we were able to obtain admissions from the employer that they had not looked at any reasonable adjustment capacity they may have.

As a result, we were able to reach agreement for our member to commence work temporarily in the library, with her progress reviewed periodically over the term.

Our member was eventually able to resume duty in her full-time office role.

Knowing your rights

Our members’ health always takes precedence, but finding reasonable adjustments is often a matter of “thinking outside the box” when it comes to injured or impaired employees.

It is shameful that some employers in our sector remain reticent to consider offering reasonable adjustments to staff.

This often takes our members by surprise as they cannot understand why employers engage in conduct that obstructs their capacity to regain their health safely on the job.

Not only does assisting and supporting staff in this way mitigate the risk of workplace discrimination, but it also protects the employer’s investment in their staff.

It is crucial that members understand their rights when it comes to either working with a disability or impairment, or returning to work after a period of illness or injury.

Our Industrial Services team can provide general advice as well as representation to financial members.

Members who are seeking advice or representation should contact our union’s Industrial Services team on FREECALL 1800 177 938.

Authorised by Terry Burke, Independent Education Union of Australia – Queensland & Northern Territory Branch, Brisbane.