Assessing whether an employee can perform the inherent requirements of a role
The CaseHuntley v State of NSW, Department of Police and Justice (Corrective Services NSW) (2015)
In 2011, Ms Huntley – a parole officer who had worked for Corrective Services NSW since 2001 – was diagnosed with Crohn’s Disease and a sleep disorder. Following the diagnosis, Ms Huntley’s duties were modified and she worked as an intelligence analyst.
Corrective Services had Ms Huntley assessed by its doctor who advised she should not drive for more than 30 minutes at a time. Thereafter, Corrective Services terminated Ms Huntley’s employment on medical grounds.
Ms Huntley commenced discrimination proceedings.
Corrective Services argued there were no further reasonable adjustments it could make to enable Ms Huntley to perform the inherent requirements of her role.
The Federal Court found Corrective Services had not provided the doctor who had performed the examination on Ms Huntley with a description of the inherent requirements of her role. Corrective Services had also failed to ask the doctor whether any reasonable adjustments could be made to enable Ms Huntley to perform the position. Corrective Services had simply asked the doctor whether Ms Huntley was “fit” to work as a probation and parole officer.
The doctor had also indicated that Ms Huntley could drive longer than 30 minutes so long as she took breaks. However, Corrective Services had ignored this adjustment.
The Court held Corrective Services had treated Ms Huntley less favourably as a result of her disability and discriminated against her.
The Court awarded Ms Huntley:
- $75,000 compensation for pain and suffering, and breach of contract; and
- $98,863.89 plus interest for loss of wages, leave entitlements, superannuation, psychologist costs and loss of promotion opportunities.
If you are considering terminating an employee’s employment because they cannot perform the inherent requirements of their position, you must have medical evidence to support that decision.
The medical report needs to address, among other things, whether the employee will be able to perform the inherent requirements of their position if reasonable adjustments are made to their role. It is important to provide the doctor who is making this assessment with a copy of the employee’s position description, and/or a list of indicative tasks, so they can properly assess the physical requirements of the role.
Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.
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