Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 12 November 2016.
Diana is the CEO of Pushing Daisies Pty Limited, which owns and operates several store front florists. Pushing Daisies employs two full-time staff to manage and run each store.
Sarah is the manager of one of Pushing Daisies’ stores. One day after work, Sarah seriously injures her leg while surfing. Due to the seriousness of the injury, Sarah is told by her doctor that she will be unable to walk for at least three months and may never regain full use of her leg again. Sarah gives Diana the bad news along with a doctor’s certificate stating she is unable to work. Sarah exhausts her paid sick leave entitlement within two weeks, after which she takes unpaid leave.
About nine months later, Sarah calls Diana and explains that her doctor has cleared her to return to work. Diana knows she has a Duty of Care to ensure her employees’ safety at work and is concerned that Diana will be unable to safely perform the inherent requirements of her position, which includes remaining on her feet all day and lifting heavy boxes.
Diana directs Sarah to attend a “fitness for work” assessment at a nominated medical practice. Sarah complies and the subsequent report shows that there is a high risk of further injury if Sarah returns to work on full duties. Diana obtains some legal advice and ultimately decides to terminate Sarah’s employment.
Sarah makes a General Protections claim in the Federal Court against Pushing Daisies claiming she was dismissed because she has a disability, which is prohibited under the Fair Work Act 2009.
When the matter is before the Court, Diana gives evidence that she did not dismiss Sarah “because” she had a disability but “because” she was unable to safely perform the inherent requirements of her position and it was not reasonable for Pushing Daisies to amend Sarah’s position to accommodate her work restrictions.
The Court accepts Diana’s evidence and dismisses Sarah’s application. Sarah is also ordered to pay Pushing Daisies’ costs.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
