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Workplace Bulletin
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Your responsibilities to ill or injured 

employees

Monday, 15th September 2014, by Loran McDougall

In today's Workplace Bulletin:
  • Determining whether you need to make adjustments to accommodate an employee
Dear Reader,

If an employee cannot perform their job properly due to an illness or injury, you may decide to take adverse action against that employee. For example, you may:
  • dismiss the employee; or
  • reallocate a job function to another employee.
Whether or not the adverse action is lawful will likely depend on two things:
1. Whether or not the employee was able to meet the inherent requirements of their role. An employee’s incapacity is only an issue if they cannot do this.
Inherent requirements are the essential activities of a job which, if removed, would make the position a different role. Inherent requirements do not involve peripheral or non-essential tasks.
2. Whether or not there was a reasonable adjustment, e.g. flexible working hours, you could have made to help the employee overcome their incapacity and perform the inherent requirements of their role. Whether or not an adjustment is reasonable depends on whether implementing that measure would cause you unjustifiable hardship.
This means that your actions may be unlawful if you take adverse action against an employee:
  • who is able to meet the inherent requirements of their role; or
  • who cannot meet the inherent requirements of their role, but who you did not assist to meet the inherent requirements of their role by making reasonable adjustments.
To help you figure all of this out, today Charles Power will explain how to identify the inherent requirements of a role, types of adjustments you may need to make, and how to determine whether an adjustment is reasonable.
Until next time,
Jessica Oldfield
Loran McDougall
Editor
Workplace Bulletin
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When it comes to dismissing an employee, knowing the
correct procedure is essential.

Determining whether you need to make 

adjustments to accommodate an employee
by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
Identifying the inherent requirements of a role
When looking at what the inherent requirements of a role are, you need to consider:
  • the terms of the employee’s employment contract;
  • the job description;
  • the actual tasks performed in the role; and
  • the nature of your business.
Remember that inherent requirements do not include the ability to perform tasks that are only desirable.

Inherent requirements do include the ability to perform the role without endangering the safety of anyone in the workplace.

Generally, if you take the view that an employee cannot perform the inherent requirements of their role, you will need medical opinions to support this view.

Adjustments you may need to make
If an employee genuinely cannot meet the inherent requirements of their role, you may need to make adjustments to the workplace, or to the employee’s duties or work hours.

If you adjust an employee’s duties, you may do so temporarily – but make sure that the employee knows that any alternative duties they are undertaking while they are recovering are not permanent.
Workplace adjustments you might make include:
  • providing a ramp for wheelchair access;
  • installing software packages on computers; and
  • modifying work instructions or manuals.
You may choose to have a specialist such as a rehabilitation consultant or occupational therapist undertake a reasonable adjustment assessment.
How to determine whether an adjustment is reasonable
When determining whether an adjustment is reasonable, consider the following things:
  • the benefit to the employee;
  • whether there will be detriment to the employee if no adjustment is made;
  • whether there will be detriment to you, as the employer, if the adjustment is made – consider the cost and the impact the adjustment will have on business operations and your capacity to bear those costs;
  • any alternative options that are available to deal with the problem;
  • for how long the adjustments are likely to be necessary;
  • the impact, positive or negative, of the adjustment on others.
Regards,Charles Power
Charles Power
Editor-in-Chief

Employment Law Practical Handbook




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