This FWC decision seems like a harsh one, but it might be striking the perfect balance.
Do you think it’s fair to require an employee who suffers from severe claustrophobia to work in a confined space? In this instance, the Fair Work Commission says it is. Its decision is a useful one if you want to understand the balance between employee wellbeing and employer requirements.
The case involves a long-term employee of KONE elevators, an organisation that manufactures and services elevators, escalators and automatic doors. The 63-year-old employee was hired in 1996 as a trades assistant. In 2002, he was trapped in a suspended elevator and in the years following the incident he developed severe claustrophobia.
In 2006, he was transferred to the escalator team, an environment he comfortably worked in for the next 13 years.
So far, it’s a fairly standard employer response. An employee had an issue, adjustments were made and the employee was able to work effectively. But that all changed in July last year, when KONE decided to re-allocate the employee back onto the elevator team due to “operational requirements”.
A point of friction
After being placed back in the elevator team the employee was unable to perform the duties required of him. He was briefly stood down and then placed on a return-to-work program with restricted duties.
From the employee’s point of view KONE was well aware of his condition, he described it as “common knowledge”, and felt his employer transferred him knowing it would affect his performance.
The employee made an application to the FWC that he should not be required to perform elevator-related work and said as he’d been working on escalators for 13 years, these should be considered “normal duties” rather than “restricted duties”.
According to KONE, there was no distinction between the trade assistant role on either the escalator or elevator teams, meaning they could move employees around as they pleased, so long as it was safe. The FWC agreed with this.
The issue of personal safety in this case is interesting. The employee argued that under his enterprise agreement he was entitled to a safe work environment and while the FWC agreed with this, Commissioner Hunt found that his personal circumstances made it unsafe for him to operate in an elevator. However, this did not “render the working environment unsafe at large”.
According to Michael Byrnes, partner at Swaab law firm, while this decision might seem like a harsh one, the FWC has actually arrived at an outcome that he believes is fair.
Most employers are making strides in inclusivity. They’re making adjustments to ensure those with wheelchairs, vision impairments or mental health conditions are able to participate in the workplace in the same way as their fellow colleagues. So why is this case any different? Well, maybe it’s not. The FWC are just taking a more subtle approach.
“There were a number of factors that had to be thrown into the mix. This particular case is an example of where that delicate balance has been struck,” says Byrnes.
Striking the perfect balance
“At first blush, it might look like a harsh outcome – and for the employee involved it would feel that way – but the Commission has undertaken a detailed analysis of the nature of the position held by the employee and formed the view that it’s an inherent requirement of his job to work on both escalators and elevators; they weren’t prepared to rule that out all together.”
This could be due to not wanting to set a standard that would mean an employer was unable to direct a worker to undertake an inherent requirement of their role, but the FWC was also careful not to neglect the employee’s challenges.
“While the employee can still be asked to perform elevator work, the Commission has been very mindful to make it clear that the employer also has an obligation to create a safe work environment and take into account the conditions of the employee by looking to make reasonable accommodation to his conditions,” says Byrnes.
In this case, these “reasonable accommodations” included six-monthly check-ins with the employee. The FWC also warned that if he were to be dismissed for not being able to carry out his elevator-related duties, that the way in which KONE’s approached that dismissal would be put under a microscope and potentially used against them in an unfair dismissal case.
“That was something the Commissioner made clear, perhaps to focus the mind of the employer on what it should be looking to do in order to accommodate the condition of the employee,” says Byrnes.
Byrnes also points out that the employee’s long tenure and looming retirement likely played an important role in the outcome.
This is outlined in the FWC decision with Commissioner Hunt stating: “It appears to me that KONE can, with some modification of its [crew], accommodate [the employee’s] condition. That is, it appears to me that it can make some reasonable adjustments.
“Reasonable adjustments need not be promised to an affected employee for the length of their employment. That would, understandably, be too far a stretch. It is noted that [the employee] is (now) 63 years of age. He has stated that he has a small number of years that he would like to continue to work for KONE before he retires.”
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Lack of documentation
Another key takeaway from this case is the importance of keeping consistent employee records around workplace injuries, be they psychological or physical. You’d think that was just workplace safety 101, but that’s not how this case went down.
Commissioner Hunt was concerned that following around six informal conversations between the employee and his supervisor, there were no “firm and formal” enquiries made into the employee’s condition.
The employer admitted there was “anecdotal evidence” suggesting the employer had trouble entering elevators but said it was not aware, nor did it have formal records of, the employee having an long-term medical conditions.
However, the employee presented two separate medical notes from 2015 and 2018 (from different doctors) which both suggested that while the employee was physically capable to perform his role, he might have been psychologically restricted from doing so.
“Any workplace injury is a vexed area and psychological injuries are particularly vexed because there can be difficulties in terms of precise diagnosis and prognosis. But all workplace injuries should proceed on the basis of sound medical evidence, not subjective wishes or anecdotes,” says Byrnes.
His advice for those responsible for compiling a return-to-work plan is to document every stage of the process. Obtain medical evidence, record the basis of the decision, any communication around it, and the implementation of it.
“This way, you don’t get a disconnect between the return-to-work plan and what is actually happening at the coalface,” says Byrnes.
“This seems like a harsh decision because it runs counter to the employee’s wishes and plays into all of our fears about being asked to do something that we don’t want to, or can’t, do due to a fear or psychological condition. Nevertheless, it’s not as blunt as that. It seeks to strike a balance between the needs of the employee and the employer.”