ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute under the TNTTWU Fair Work Agreement 2014-2017 concerning applicant’s ability to perform the inherent requirements of role as a Bulk Freight Delivery Driver – applicant was stood down without pay in 2014 as a result of an injury to right knee – workers’ compensation application was not successful – applicant advised would not be able to continue to perform any duties until fit to fulfil the complete duties of role, and was able to provide a medical clearance that would enable such – applicant underwent a total right knee replacement and on 24 September 2015, obtained a medical clearance from General Practitioner to return to work – respondent advised applicant of request to have a further assessment to ensure fitness was adequate to return to normal role – applicant ‘required’ to attend two medical appointments; a functional assessment with an Exercise Physiologist, and a fitness for duties assessment with an Occupational Physician – on 14 January 2016, the applicant attended a meeting with the respondent and was handed a ‘show cause’ letter – the TWU, on behalf of the applicant, disputed the show cause letter, which was ultimately withdrawn – on 4 March 2016, the applicant attended a further meeting at and provided with a further show cause letter with the subject ‘Outcomes of Fitness for Duties Assessment’ – as a result of report from the Occupational Physician respondent advised the applicant that ‘The results of the assessment indicate that you are unable to safely perform the inherent physical requirements of your current role and impose significant restrictions on the kind of work that you can safely perform at TNT’ – show cause letter indicated the respondent sought to consult with the applicant regarding the assessments and their impact on suitability for continued employment in current position, and any alternative positions the applicant might otherwise be qualified to safely perform – letter advised that should suitable alternative roles not be identified, the applicant’s employment would be terminated as a result of incapacity to safely perform the inherent requirements of the position – Boag considered – inherent requirements for a bulk driver must be considered in combination with the surrounding context of the applicant’s workplace and duties [X v The Commonwealth] – onus is on the employer to demonstrate that the employee cannot meet the inherent requirements of the position – couldn’t be concluded that TNT had established that the ability to lift weights of over 40kg, unaided, was an essential requirement of the position of Bulk Driver – Commission found the evidence did not represent that what was asserted as the inherent requirements of the role of Bulk Delivery Driver were the inherent requirements in practice – satisfied applicant was fit to perform the inherent requirements of the role and should be returned to role immediately with appropriate ‘work hardening’ as recommended by the Occupational Physician. Martin v TNT Australia P/L t/a TNT
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