Disagreement over changing positions leads to a dismissal: Is it lawful?
The Employment Relations Authority (ERA) recently dealt with a case involving a worker's dismissal on medical grounds.
A long-serving worker challenged the termination of his employment, arguing that his role had been unfairly altered over time.
He claimed that despite his willingness to continue working, the employer imposed job requirements that were neither part of his original agreement nor suitable given his medical condition.
The dispute centred on whether the employer had the right to enforce the changes and if the worker's refusal to comply justified dismissal.
The worker was employed by the government agency in 2008 as a customer service specialist. In 2017, the agency underwent a major organisational restructuring, introducing changes to job descriptions and work expectations.
As part of this restructuring, the worker was offered a new role as a customer service officer in October 2017, which he accepted, though he noted it was signed “under duress.”
The restructuring resulted in revised duties, and by 2020, the agency introduced a new scheduling system that required employees to take in-bound customer calls for a portion of their work hours.
The worker, who had tinnitus, found that taking customer calls worsened his condition. A workplace assessment confirmed that his symptoms were aggravated by the task, and the employer initially accommodated him by not requiring him to take calls.
By 2022, the agency formalised job expectations requiring employees in the worker’s role to handle in-bound customer calls. The worker refused to participate in call-handling, arguing that his employment terms did not require it.
He also declined discussions about possible accommodations. The employer maintained that taking customer calls was a core aspect of the role and that the worker was required to comply.
In early 2023, discussions between the worker and employer continued. The employer offered to fund a medical assessment and treatment to help the worker manage his condition.
The worker saw a specialist, who reported that receiving unpredictable calls increased his stress, which worsened his perception of tinnitus. However, the report did not conclude that the worker was completely unfit for his role.
Following the assessment, the employer proposed exempting the worker from call-handling duties for six months while he underwent treatment and training to manage his condition. The worker declined the offer, maintaining that answering calls was not part of his role.
On 8 November 2023, the employer sent a letter stating that because the worker had not engaged with the proposed accommodations and could not perform a key requirement of his role, the employer was considering ending his employment on medical grounds.
In a meeting on 21 November 2023, the employer reiterated its position, stating: “You have told [us] that your tinnitus prevents you from being able to perform inbound voice work (which is a requirement of your role), and you have declined to attend treatment and training which may assist you to perform that work.”
The employer further explained that termination on medical grounds did not require the worker’s consent under the terms of the employment agreement.
The ERA reviewed the circumstances to determine whether the employer followed a fair process. The key issues considered were whether the worker’s role required him to take in-bound calls, whether the employer properly considered alternatives before dismissal, and whether the employer acted reasonably throughout the process.
The decision noted that the worker’s role description included the requirement to provide customer service across various channels, including phone interactions.
The employer had engaged in consultation with employees in similar roles and had introduced changes that aligned with the restructuring process started in 2017.
The ERA also considered whether the employer had acted fairly in managing the worker’s medical condition. The employer had provided medical support, sought expert advice, and offered adjustments to the worker’s duties.
However, the worker did not accept the proposed accommodations and did not suggest an alternative arrangement.
The ERA determined that the employer had acted as a fair and reasonable employer and that the dismissal was justified.
The decision stated: “His medical condition meant that he could not perform all the requirements of his role. For about 28% of the working year, [workers] are required to be available for voice work up to full-time. Over the remainder of the year, they are required to be available for voice work 20% of their time. His incapacity was significant, and [the employer] was justified in deciding that there were grounds to terminate his employment.”
The ruling found that the employer had sufficiently investigated the matter, engaged with the worker about his concerns, and provided him with a reasonable opportunity to respond before making the decision to dismiss him.
The employer’s efforts to support the worker and offer adjustments to his role were found to be in line with good faith obligations under employment law.
The decision also addressed the worker’s claim of discrimination due to his disability, stating: “The reason that [the worker] was not able to do that work (his disability) was not a material cause of [the employer’s] decision.”
It was determined that other employees who could not perform a significant part of their work would have been subject to the same decision.
