Bunnings wins unfair dismissal case over exposure to cold temperatures at work
Thursday, October 16, 2014/
The Fair Work Commission has found Bunnings’ dismissal of an employee for unfitness to perform inherent work requirements was not unfair, harsh or unreasonable.
Reynato Reodica complained he was exposed to wind and cold temperatures at the Bunnings store he worked at.
Reodica’s duties included operating a forklift, lifting bags of sand and cement, and replenishing and recovering stock.
But while helping a customer lift items he suffered an umbilical hernia.
Returning to work after the hernia he complained of “suffering and battling all body deep tissue muscular, deep to the root of the teeth and deep to the gums nagging aches, pains, sensitivity and numbness from cold weather, [wind] and rain”.
During the total period of his employment, Reodica only worked for nine months due to his injuries and between October 2012 and January 2014 he only worked one day.
Bunnings had a practice of mitigating the conditions in its large warehouses, where the temperature could not be regulated, by providing polo shirts, polar fleece vests, windcheaters, gloves, a beanie and scarf.
As this had not been sufficient for Reodica in this case, Bunnings concluded it would be in breach of its occupational health and safety obligations if it allowed him to return to work.
After several meetings between Bunnings and Reodica, Bunnings terminated his employment as it could not provide a suitable work environment, namely guarantee that it would not be windy in the store and that the temperature would not fall below 22 degrees.
The Fair Work Commission found Bunnings had done everything it reasonably could to give Reodica time to see if his medical condition would improve and had valid reasons for terminating his employment.
Judd Young, employee relations manager at Bunnings, told SmartCompany the hardware retailer has a long history of providing care and support for its employees.
“While we regret the situation in which Mr Reodica finds himself, we believe the decision made by the Fair Work Commission was fair” he says.
Andrew Douglas, partner with M&K Lawyers, says Bunnings’ actions were lawful discrimination.
“The legislation says there are circumstances where such discrimination is lawful where you can make no reasonable adjustment,” he says.
“It shows employers, particularly SMEs, need advice to do this properly.”
Douglas says the key legal test is whether the employee can do the inherent task of their job, so a job description is crucial.
“When employers are getting their medical evidence or referring to the employee’s doctor they must provide them with the inherent task requirements,” he says.
SmartCompany was unable to contact Reynato Reodica for comment.