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