[2010] FWAFB 4022

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Fair Work Act 2009
s.604 - Appeal of decisions

J Boag and Son Brewing Pty Ltd
Allan John Button



Appeal – unfair dismissal – valid reason – incapacity to perform the inherent requirements of a position or job – whether tested against modified duties or restricted duties or against the substantive position or job.

[1] This is an application by the appellant (Boags) for permission to appeal and, if permission is granted, an appeal against a decision and order of Senior Deputy President Kaufman on 13 January 2010 allowing Mr Button’s application for an unfair dismissal remedy.

[2] Mr Button was employed by the respondent as a Brewery technician in June 2005.

[3] Mr Button was born with a congenital defect in his bladder. This defect led to the removal of his bladder and the surgical installation of a drain known as an ileal conduit when he was a child. He will require this drain for the rest of his life. The drain does not have an indefinite life and, barring earlier complications, must be replaced about every ten years. Mr Button had already had two such revisions; the latest being “a few years ago”.

[4] In about March 2008 Mr Button was diagnosed with a hernia at the site of the drain. On 11 August 2008 Mr Button was reviewed by Dr Pan, a urology registrar, whose report included the following:

[5] Sometime shortly thereafter Mr Button was placed on a restricted duties plan to ensure that he did not perform tasks that were involved lifting weights above the limits that was specified by Dr Pan.

[6] In October 2008 Boags arranged for an occupational therapy assessment of Mr Button by Advanced Personnel Management (APM), conducted an. APM’s report notes that:

[7] APM recommended that Mr Button continue to perform his restricted duties and that he “[remain] in close contact with medical professionals to discuss future treatment options”.

[8] In November 2008 Mr Button sought overtime work in the Christmas lead up, the respondent’s busiest period, and was informed by a Manager that no employee on light duties would be given overtime.

[9] In March 2009 Boags requested a medical report by Mr Brough, Mr Button’s treating surgeon.

[10] On 6 April 2009 Mr Brough, Mr Button’s treating surgeon, provided a short report to Ms Williams of Boags’ parent company, Lion Nathan. It is not entirely clear how Mr Brough came to be providing a report to his patient’s employer however it would seem that the request for the report was conveyed through Mr Button. Mr Brough’s report was as follows:

[11] Shortly thereafter the respondent retained another occupational health consultant, Konekt, to perform a further occupational therapy assessment in light of Mr Brough’s opinion that Mr Button had a definite restriction on lifting more than 5kg.

[12] That assessment occurred on 24 June 2009. On that same day Mr Button met with two managers, Mr Turner and Mr Roy. Mr Turner noted in relation to his understanding:    1

[13] On about 26 June 2009 there was a telephone hook-up between relevant Boags managers “to discuss various options for dealing with Mr Button’s employment depending on the outcome of [Konekt’s] report”. Mr Hargan, one of those managers, said of this meeting: 2

[14] The Konekt report, dated 1 July 2009, notes that the “objectives of assessment” were:

[15] The report noted that “[t]he assessment was requested by Boags Brewery (BB) and they are concerned that Mr Button is at risk undertaking his normal duties due to the inherent physical requirements of his role.” The report analyses the physical requirements of Mr Button’s pre injury duties and concludes:

[16] On 7 July 2009 Boags decided that Mr Button could not perform the inherent requirements of his substantive role, could not be redeployed and should have his employment terminated however there was a delay in conveying this decision to Mr Button.

[17] Mr Button was provided with a copy of the Konekt report on or shortly after 21 July 2009. On 28 July 2009 Mr Button, accompanied by a union representative, met with two Boags managers. A further meeting occurred on 4 August 2009 by which time it was clear that Mr Button’s employment would be terminated.

[18] On 7 August 2009 Mr Button was charged with a drink driving offence.

[19] Mr Button was given a formal letter of termination on 11 August 2009, with such termination to take effect on 11 September 2009.

[20] The Senior Deputy President found that there was no valid reason for Mr Button’s dismissal:

[21] The Senior Deputy President found that there was no valid reason for the dismissal of Mr Button on the basis of an inability on the part of Mr Button to perform the inherent requirements of his job. The Senior Deputy President proceeded on the basis that Mr Button was able to, and had been, performing the inherent requirements of the restricted duties in which he had been working since October 2008. This conclusion involved error.

[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.

[23] In X v Commonwealth 3 the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:4

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU 5 a Full Bench noted:

[25] In Qantas Airways Ltd v Christie 6 Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.”7 Her Honour noted:8

[26] Gaudron J also noted 9 that the fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question whether it is an inherent requirement of the particular position in question.

[27] McHugh J drew attention to the distinction between an employee’s job and their position: 10

[28] McHugh J endorsed the proposition that “whether a requirement was an inherent requirement of a particular employment was a matter which should be determined according to the dictates of common sense and as a matter of objective fact rather than as a matter of mere speculation or impression.” 

[29] It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. 12 An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event.13 Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job.14 But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.15

[30] In the present case, it is clear that both Mr Button’s position and his job had important features that he could not perform because of his lifting restriction. Mr Button had an incapacity to perform the all of the inherent requirements of his job and, on balance, this constituted a valid reason for his dismissal.

[31] However, it is also well established that there may be a valid reason for dismissal but the dismissal may nevertheless be harsh, unjust or unreasonable. 16 In this case the Senior Deputy President also noted that he would have concluded that Mr Button’s dismissal was harsh even if his inability to perform the inherent requirements of his position had constituted a valid reason for the for the dismissal:

[32] In our view, the reason given for this conclusion, while clearly relevant to a consideration of whether the termination was harsh, unjust or unreasonable, is not, of itself, sufficient to justify the conclusion that the dismissal was harsh, unjust or unreasonable. Such a conclusion calls for a consideration of a broader range of circumstances with particular reference to the extent to which the continued employment of Mr Button would have constituted an unreasonable burden on Boags or other employees in the context of the consequences of the dismissal for Mr Button.

[33] At this point it is convenient to deal with a second basis for the dismissal relied upon by Boags.

Drink Driving Offence

[34] Mr Button committed a drink driving offence on 7 August 2009, that is, after he had been informed on 4 August 2009 that his employment would be terminated but before the termination formally took effect on 11 August 2009. At the hearing before the Senior Deputy President Boags placed reliance on that drink driving offence as providing a valid reason for dismissal and contended that dismissal for that reason was not harsh, unjust or unreasonable. The Senior Deputy President rejected that contention:

[35] Mr Button was still formally employed by Boags at the time of the drink driving offence and still formally obliged to comply with Boags’ reasonable policies albeit that he had long since ceased attending work and had been notified of his dismissal and was merely waiting for it to take effect. Given the significance reasonably attached to the policy by Boags, the drink driving offence involved a breach of the reasonable policy that provided a valid reason upon which Boags was entitled to rely in supporting its decision to dismiss Mr Button. In this regard we disagree with the Senior Deputy President. However, the dismissal, whether on this basis alone or in combination with the reason based on Mr Button’s capacity, might still properly be harsh, unjust or unreasonable. Boags did not apply the policy rigidly. Mr Jensen gave evidence of his knowledge of an employee who lost his licence through drink driving but who did not lose his job. 17 We agree with the Senior Deputy President’s apparent conclusion that the vey unusual circumstances of this case substantially diminish the significance that is properly attached to Mr Button’s breach of policy such that it was well open to his Honour to conclude that dismissal for this particular breach of the policy was harsh.


[36] We are satisfied that the decision below is affected by error and that permission to appeal should be granted. We have considered whether we should proceed with a rehearing and determine for ourselves whether Mr Button’s dismissal based on his incapacity to perform the inherent requirements of his position was harsh, unjust or unreasonable. We have decided against that course because a determination of whether the dismissal was harsh will turn on which evidence is accepted in relation to the issues identified in paragraph [32], in relation to which the Senior Deputy President has not made findings nor provided a sufficient indication which witness’ evidence should be preferred. Given the conflict between the evidence of Mr Button and evidence given by some of the witnesses called by Boags (most particularly the evidence of Mr Jensen) going to those issues, in the particular circumstances of this case we think that that assessment should not be made by us because we have not had the benefit of hearing and seeing the witnesses give their evidence. On the other hand, in the all the circumstances, on balance we think it appropriate that the matter be referred to another member of the Tribunal.

[37] Permission to appeal is granted. The appeal is allowed and the decision of the Senior Deputy President is quashed. The matter is referred to Vice President Lawler to deal with Mr Button’s application for an unfair dismissal remedy consistent with these reasons. To remove doubt, these reasons do not require Vice President Lawler to conduct a full hearing afresh without regard to the evidence before the Senior Deputy President. It will be open to his Honour to determine, after hearing from the parties, what portions of the evidence before the Senior Deputy President ought be admitted in the hearing of the application before him and the extent to which there should be further oral evidence in chief and or cross-examination. In this context we should also note that there was an issue between the parties as to the attitude of other employees to providing assistance to Mr Button. The finding in paragraph [49] of the Senior Deputy President’s reasons was the subject of argument during the hearing of the appeal. We note that we can detect no error in that finding.



Mr F. Parry SC, of senior counsel, with Mr P. Wheelahan, of counsel, for the appellant.

Mr D. Durkin, solicitor, for the respondent.

Hearing details:

March 10.

 1   AB390 at PN 7.

 2   AB200 at paras 17 and 18.

 3   (1999) 200 CLR 177.

 4   (1999) 200 CLR 177 at 209.

 5   (2004) 143 IR 354 at [124].

 6   (1998) 193 CLR 280.

 7   (1998) 193 CLR 280 at [35].

 8   (1998) 193 CLR 280 at [33] – [34].

 9   (1998) 193 CLR 280 at [37].

 10   (1998) 193 CLR 280 at [72] – [73].

 12   Selvachandran v Peteron Plastics Pty Ltd (1995) IR 371 at 373.

 13   Ermilov v Qantas Flight Catering Pty Ltd (PR956925, Giudice J, Hamberger SDP and Raffaelli C, 4 April 2005) at [34].

 14   Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations

Commission [2001] FCA 1665 (Gray, Branson and Kenny JJ) at [14].

 15   See, for example, Stergioti v Toyota Motor Corporation Australia Limited (PR953320, Duncan SDP, 17 November 2004)

 16   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 17   Transcript at PN 1560-1.

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