Failure to Meet the Inherent Requirements

March 2014

A Rail Safety Perspective

Dismissal of long-term sick or injured employees is a difficult challenge for all employers. However, employers in the rail industry face unique considerations arising from the high risk nature of their work and the specific rail safety obligations imposed upon their operations.

The Fair Work Commission (FWC) has this month confirmed the key issues that employers in the rail industry must turn their minds to when considering termination of employment on the basis that an employee cannot continue to meet the inherent requirements of their position.

What the Cases say

In the first case, a Locomotive Driver for V/Line1 was terminated after being absent from work for several years on account of suffering from PTSD following a number of traumatic incidents at work.

The employer, on its initiative, arranged for an independent medical assessment of the employee, which confirmed that he continued to be startled by passing trains and suffered concentration difficulties. The report stated that it was unlikely that the employee would ever return to his full pre-injury duties. On this basis, the employer terminated the employee’s employment after 44 years of service.

In bringing an unfair dismissal application, the employee argued that he had some prospect of improving his condition and could be rehabilitated in alternate duties. However, whilst the FWC agreed that the employee believed his condition could improve, the medical evidence and objective facts known to V/Line at the time of dismissal indicated no prospect of him being able to return to his position.

Interestingly, the FWC decision noted although the obligation of an employer to consider suitable alternative employment arises in a workers’ compensation context, there is not always an obligation to do so before considering dismissal. The FWC held that V-Line did not need to consider alternate suitable roles for this employee as he had only ever performed locomotive duties and it would have been difficult to find a readily available alternate position.

In the second case, a locomotive driver of 34 years for Aurizon2 was dismissed after he suffered a seizure whilst at work resulting in a sudden loss of speech fluency. After being absent from work for 18 months, the employer issued a show cause letter and later terminated the driver’s employment.

Before the FWC, the employer argued that specific obligations of the rail safety law, in addition to the duties imposed by work health and safety laws, placed onerous obligations on the employer to ensure that employees in critical rail safety roles were fit for duty, so as not to create a risk to the health and safety of others.

The FWC considered the specific requirements of the National Standard for Health Assessment of Rail Safety Workers, which is given some force by the rail safety law3. The FWC held that “It is clear that, whilst not forming a ‘law’ itself… the Respondent is required, by the Rail Safety Act, to have a program that is consistent with the guidelines in the National Health Standard.”

The FWC was satisfied the employee could not complete the inherent requirements of his substantive role and the employer was “acting within the terms of their policy and the National Standard” in dismissing the employee for that reason.

Key considerations

Rail transport operators have a duty to ensure that employees working in critical rail safety positions do not, through illnesses or injury, create a risk to the health and safety of others. These decisions demonstrate that the FWC is attune to the unique operating environment of rail transport and highlight the additional considerations employers in this industry should have when terminating employment following prolonged employee absence.

1 Kevin Rowe v V/Line Pty Ltd [2014] FWC 1437
2 Mr Stephen Born v Aurizon [2014] FWC 22
3 The Transport (Rail Safety) Act 2010 (Qld) is still in force in Queensland, where the case was heard. The Rail Safety National Law, is in force in NSW, SA, TAS and the NT


Tom Reaburn

More than a safe set of hands. What matters to our clients is what matters to me.

Tom Reaburn Senior Associate

Tom is a workplace relations expert who specialises in work health and safety and employment litigation.

Tom is passionate about Work Health and Safety Law. As a previous work health and safety investigator at the Commonwealth WHS regulator, Comcare, Tom provides his clients with a uniquely practical perspective on WHS compliance. His clients rely on him to provide pragmatic advice to ensure that their businesses, and their officers, are complying with the WHS Laws. Tom is often called upon to attend sites after serious incidents and provide immediate assistance and advice.

Tom also advises and litigates across all "dual regulation" health and safety regimes, including rail, mining, aviation and marine. He also acts for his clients in coronial inquests arising from workplace deaths.

In addition to his WHS practice, Tom is an experienced employment litigator, advising and advocating in a variety of State and Federal jurisdictions. He regularly appears before the Fair Work Commission, Australian Human Rights Commission, Industrial Relations Commission of NSW and various other state and Federal courts.

Tom has recently completed secondments at the Westpac Banking Corporation and NSW Police Force, specialising in employment litigation.

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Scarlet Reid

The answer is yes.

Scarlet Reid Partner

Scarlet is a highly experienced employment lawyer who advises her clients across the full range of issues that arise in the workplace. She is a recognised leader in the area of OHS, and is Best Lawyers' 2016 Sydney Occupational Health & Safety Law "Lawyer of the Year".

Over the past 15 years, Scarlet has specialised in work health and safety (WHS). As a former prosecutor at the WorkCover Authority of NSW, she provides her clients with a unique insight into compliance with WHS laws and defending WHS prosecutions. Scarlet is skilled in providing practical strategies for managing WHS risks.

Scarlet is an accomplished litigator and has defended various large corporations, government agencies and individuals charged with breaches of the WHS Law. She is experienced in responding to requests from Regulators and provides committed support to clients being investigated for breaches of safety laws, including carrying out detailed investigations into workplace incidents and representing her clients at coronial inquests.

Scarlet also provides front-end WHS advice, including the development and implementation of safety management systems and due diligence frameworks, designed to achieve compliance with the WHS Laws. She frequently conducts training for directors and managers which focuses on the practical measures required to meet both corporate and individual safety responsibilities.

Scarlet often speaks at conferences and seminars on developments and trends in WHS and employment law.

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Tony Woods

Solving your issues and succeeding with you, that is the core of what I do.

Tony Woods Partner

Tony has over 30 years' experience in all areas of workplace relations and safety law. A significant part of his practice is dedicated to his role as a longstanding trusted adviser to New South Wales Government clients.

Tony delivers strategic advice on significant employment matters from implementing effective remuneration strategies, performance management of senior employees and advising on major restructuring of organisations, to the management of individual employee and industrial disputes. He has also acts for senior executives.

Tony's work regularly includes negotiating enterprise agreements and awards, industrial disputes, drafting employment contracts and policies, dispute resolution, dealing with discrimination complaints, managing performance and conduct reviews and terminations and dismissal disputes, as well as managing safety risks and defending workplace health and safety (WH&S) prosecutions.

Tony has been involved in implementing the industrial relations strategy as part of one of Australia's largest de-mergers and successfully managing the extraction of key employees avoiding restraint obligation disputes. His recent work also includes advising on major restructures, obtaining orders from FWC for right of entry breaches, managing terminations while neutralising industrial disruption, successfully defending major WH&S prosecutions and creating a compilation of operative provisions from over 50 awards and enterprise agreements into a single enterprise agreement.

Tony regularly presents seminars to our clients' human resources and employee relations personnel to ensure relevant and timely information and skill transfer relating to current employment law and WH&S issues.

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