Safe practice or discrimination?

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This is one of those sad stories of an employer being stuck between a rock and a hard place with a long serving staff member who was no longer capable of fulfilling all the duties of the job.

Unfortunately the way they went about resolving in the situation fell short of the required standard.
Ms Crozier was employed as a support worker, working with intellectually disabled people who were largely the subject of court orders requiring their detention.

She had been in the role for 23 years where she managed clients with complex and challenging behaviours, accompany them in the community and prevent them from absconding.

She developed a chronic respiratory condition that limited her ability to perform some aspects of her job. The health problem flared up sporadically requiring time off, but the rest of the time she managed to do most of the job, though sometimes she struggled and was short of breath.

In 2010 her then manager expressed concern that Crozier was exposed to potential harm in the work environment and proposed transferring her to another role. This was the beginning of a protracted process which eventually resulted in her dismissal for medical incapacity in September 2014.

In mid-2011 the employer requested medical clearance following a period of ill health and asked for their Occupational Specialist to review her file and suitability for the work.

Crozier declined to authorise the specialist access to the file. Fast forward 18 months and a new manager expressed the same concerns about her ability to do the job but had no specific evidence of this.

Nothing happened and another 16 months passed before it was raised again. This time the manager wrote to Crozier’s doctor raising concerns identified by other staff about her ability to do some of the physical aspects of the job and he confirmed she was able to continue her role.

The employer then required Crozier to undergo an assessment against five physical criteria:
•    Walking up to 5km
•    Catching public transport
•    Following clients at a steady pace
•    Working on her feet for long periods
•    Using physical restraint with clients.

These criteria were not in her job description and were not applied to other staff.

The Occupational Specialist concluded that she could catch public transport and work on her feet for long periods but would not be able to walk up to 5km at a steady pace nor would she be able to follow clients at a steady pace or restrain clients, concluding that she was not able to safely perform her duties.

Staff were required to pass a restraint training course annually which Crozier did and in 23 years had never been required to use restraint.

The requirement to walk 5km was not at a steady pace, although this was the standard used and absconding staff could be followed in a vehicle, which Crozier had done before (making the standard of following clients at a steady pace irrelevant).

Discussions progressed and eventually Crozier’s employment was terminated on the grounds of medical incapacity and she was given two weeks’ notice.

The Employment Authority found that as the physical requirements were not in the job description, were not applied to other staff, and were not entirely relevant to the job, they were only applied to Crozier because she had a medical condition and therefore it was discrimination.

ISL had a specific policy for termination on medical grounds and it became applicable when a person had been absent for more than six weeks. Crozier did not meet the criteria so the policy was not relevant.

The authority concluded that a more comprehensive investigation of the situation should have been undertaken, including that allegations of non-performance received from other staff should have been put to Crozier.

Crozier was awarded three months’ lost pay and $15,000 discounted by 10 percent for contribution due to her inability to perform all the requirements of the job. In essence, this was a performance issue not an incapacity issue.

This situation is every employer’s nightmare – an aging, long- serving staff member who is no longer able to do their job to the required standard.

Where there is a physical component to a job, it is important the basic requirements are written in the job description and applied to all staff. If these are to be retrofitted into a job description it needs to be done with consultation and with a reasonable time for staff who are below the standard to improve their fitness to achieve the standards.

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About Author

Anne Aitken

Anne Aitken is a highly experienced Human Resources professional who focuses on helping employers strengthen their organisations through working with their people. email: anne@anneaitken.co.nz | www.anneaitken.co.nz

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