Bunnings worker fails in unfair dismissal claim after developing hernia at work
Friday, October 3, 2014/
A former Bunnings employee has had his claim for unfair dismissal rejected, after the Fair Work Commission ruled the retailer did all it could to accommodate the worker’s medical concerns.
In a case that clearly demonstrates the requirements for an employee to meet the inherent duties of their job, the commission heard Reynato Reodica, who started work at Bunnings warehouse in Auburn, New South Wales in 2010, suffered from an umbilical hernia while helping a customer lift items in October 2011.
Reodica underwent surgery for the hernia in March 2012 and from that point was restricted to lifting no more than 10kgs while working.
To accommodate his condition, Bunnings allowed Reodica to return to work in July 2012 in a full time role as a gatekeeper, but Reodica said while performing the new role he was over-exposed to cold temperatures, wind gusts and rain gusts and therefore developed pain in various spots on his body, including sore gums and teeth problems.
After filing a claim for workers’ compensation in August 2012, Reodica was then moved to the cash register within the store. However, Bunnings said this position was no longer available after October.
In January 2013, the Workers Compensation Commission instructed Bunnings to offer Reodica suitable duties, and he again started work as a cashier in February. Again Reodica said the area he was required to work in was “cold, windy and draughty” and also claimed he cracked a tooth while in the role.
A decision was made to close the Bunnings warehouse store in Auburn in mid-2013 and according to Mr Hannaford, the manager at Bunnings Castle Hill, Reodica opted to be redeployed to the Castle Hill store.
However, it was decided in consultation with Bunnings’ HR department that Reodica’s requirements to work in an environment that was “inside, out of the cold and wind and it would need to be 22 degrees” was not feasible at the Castle Hill store and, after a period of Reodica not working for six months, his employment was consequently terminated in January 2014.
Commissioner Roberts ruled in Bunnings favour, finding the retailer “did everything it reasonably could have done to give Mr Reodica an extended period of time to see if his medical conditions would improve”.
“[Reodica’s] self-stated physical condition precludes him from returning to work at Bunnings and Bunnings was entitled to … end the employment relationship. It is to Bunnings’ credit that it waited so long to do so when it could have acted earlier.”
Roberts found Reodica’s dismissal was “the inevitable result of his medical conditions” and therefore Bunnings’ treatment of him was not harsh, unjust or unreasonable.
“His medical condition has had a markedly adverse effect on his life but his inability to perform work at Bunnings without restrictions is not his fault or that of Bunnings,” Roberts said.
Bunnings employee relations manager Judd Young told SmartCompany that Bunnings “has a long history of providing care and support for our team members”.
“While we regret the situation in which Mr Reodica finds himself, we believe the decision made by the Fair Work Commission was fair,” says Young.
Employment lawyer Peter Vitale told SmartCompany Bunnings clearly made “very substantial efforts to identify duties suited to the employee given his medical diagnosis and ultimately after a long process, Bunnings was unable to do so.”
Vitale says the case shows the Fair Work Commission will assess the employee’s fitness for their job against their original position, as opposed to other prospective positions.
“It’s consistent with a case some years ago – Cosma vs Qantas Airways Limited – where the employee unsuccessfully argued their contract for employment had changed so their position had changed, and while they were not fit to perform the duties of the original position, they were fit to perform the duties of the changed position,” he says.
Andrew Douglas, partner at M+K Lawyers, told SmartCompany it is common for employers to go above and beyond their responsibilities in attempting to accommodate workers who are ill or injured.
“It’s incredibly common to have good employer behaviour, for them to be generous and continue to try to work with employees, whether they are injured at work or outside of work,” Douglas says.
“We hear about all the terrible cases where someone with cancer has been terminated, which would lead us to believe Australia is filled with terrible employers but quite the opposite is true.”
Vitale says it can be extremely difficult for SMEs to manage long-term ill or injured employees, “particularly if their condition severely limits the types of duties they are capable of performing.”
Nevertheless, he says it is “absolutely necessary that before making a decision to terminate an employee on these grounds, [the employer] exhausts the possibility that they are going to receive a favourable medical assessment in respect the employee.”