In Davis v Lasting Changes Aged Care Services  FWA788, Fair Work Australia (“FWA”) ruled on whether it was unfair to dismiss the applicant because she had a degenerative back condition and had refused to work day shifts rather than night shifts as she had prior to injury and the condition manifesting itself.
The applicant had sustained a back injury at work and had been absent for some time. She had overcome the injury however she experienced pain on an ongoing basis due to an underlying degenerative spinal problem. As a result of her lengthy absence, the employer had filled her position on night shift. Upon her return, the only position available was on the day shift. Her employment contract did not specify that she was to work the night shift only and otherwise stated that she was required to work whatever shifts she was rostered for.
The evidence was that the bulk of work was done during the day and afternoon shifts. FWA also assumed that it would have been beneficial to the applicant to work on the day shift rather than with a smaller group on night shift as she would have easier access to additional assistance for lifting tasks or any other task that her back condition restricted her in. There was no evidence the employer had singled her out or otherwise attempted to treat her differently in allocating her to the day shift.
There was evidence of sufficient correspondence between the parties and legal representatives that the issues of her ability to perform the work and her refusal to work day shift had been adequately notified and discussed. Given her early involvement of legal representation, there was no issue as to whether she had been deprived of adequate support in the discussions. The applicant did not lead any evidence as to why she could or should work the night shift only, and FWA did comment on the lack of that evidence.
In balancing all of the above, FWA concluded that the termination was not unfair and the application was dismissed.
Carter Newell Lawyers – Carter Newell | Publications
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