FEDERAL COURT OF AUSTRALIA Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226 INDUSTRIAL LAW – application for unlawful termination on grounds of disability – applicant injured in 2001 while working as Storeworker Grade II – employment terminated in 2003 while applicant engaged in light duties – whether "particular position" was determined exclusively by reference to the duties enumerated in the relevant Enterprise Bargaining Agreement – what were "inherent requirements" of applicant's "particular position" – whether applicant able to carry out the "inherent requirements of the particular position" Workplace Relations Act 1996 (Cth) ss 170CP, 170CR, 170CK Qantas Airways Ltd v Christie (1998) 193 CLR 280, applied Cosma v Qantas Airways (2002) 124 FCR 504, referred to X v Commonwealth (1999) 200 CLR 177, applied DAVID CUCANIC v IGA DISTRIBUTION (VIC) PTY LTD V 627 OF 2003 MARSHALL J 20 SEPTEMBER 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 627 OF 2003 BETWEEN: DAVID CUCANIC APPLICANT AND: IGA DISTRIBUTION (VIC) PTY LTD (ABN 87 006 509 280) RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 20 SEPTEMBER 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 627 OF 2003 BETWEEN: DAVID CUCANIC APPLICANT AND: IGA DISTRIBUTION (VIC) PTY LTD (ABN 87 006 509 280) RESPONDENT JUDGE: MARSHALL J DATE: 20 SEPTEMBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Mr David Cucanic, has applied to the Court pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) ("the Act") for an order under s 170CR in respect of an alleged contravention of s 170CK(2)(f). 2 Mr Cucanic alleged that his employment was terminated by the respondent, IGA Distribution (Vic) Pty Ltd, ("IGA") for reasons which included the reason that he suffered from a physical disability. IGA conceded, through its counsel, that it terminated Mr Cucanic's employment for that reason, but alleged that that reason was based on the inherent requirements of the particular position occupied by Mr Cucanic; see s 170CK(3) of the Act. The issues 3 The questions for determination by the Court are: * What was the particular position occupied by Mr Cucanic as an employee of IGA? * What were the inherent requirements of the position? and * Was Mr Cucanic, because of his disability, unable to carry out the inherent requirements of the position? Factual context 4 IGA conducts a warehousing and distribution service from its premises at North Laverton, a western suburb of Melbourne. From about October 2000 until 4 May 2001, IGA employed Mr Cucanic as a storeperson at its North Laverton premises on a series of casual and short, fixed term contracts. 5 On 4 May 2001, IGA offered, and Mr Cucanic accepted, "a Permanent Full-time Position effective from the 04/05/01 as a Storeperson at the Laverton Distribution Center." From his first casual engagement until May 2001, Mr Cucanic worked in the dry groceries area and the general merchandising area of IGA's distribution centre. After becoming a full-time permanent employee in May 2001, and until suffering an injury to his back on 31 October 2001, Mr Cucanic spent a majority of his working time in the dry groceries area. 6 The terms and conditions of Mr Cucanic's employment were in part governed by an enterprise bargaining agreement ("EBA") which contained a classification structure. When first engaged by IGA, Mr Cucanic was classified as a Storeworker Grade I but progressed at least as at 31 October 2001 to a Storeworker Grade II. 7 Under the classification structure provided for in the EBA, a new employee commences as a Storeworker Grade I. The various "Job Titles" within the classification are: "Order Assember, Filler, Pick-Ups, Stretch Wrapping, Cleaner (Promotion to Grade 2 may be achieved before 2 years based upon performance)." Included as "indicative of the tasks which an employee at this level may perform" were the following: * "storing and packing of goods and materials in accordance with the appropriate procedures and/or regulations; * … * allocating and retrieving goods from specific warehouse areas; * …" 8 A "Storeworker Grade I" is able to become a "Storeworker Grade II" upon "proven and demonstrated skills…to the level required of this grade." 9 Included as indicative of the tasks which an employee who is a Storeworker Grade II may perform are: "- licensed operation of all appropriate materials handling equipment; - use of tools and equipment within the warehouse (basic non-trades maintenance); - operation at a level higher than that of an employee at Storeworker I Level." 10 As an employee classified as a Storeworker Grade II, Mr Cucanic performed the duties of "order assembling", "filling", "pick-ups" and "stretch wrapping". He picked up and packed orders as required. 11 The goods in the dry grocery area were of a type which are commonly found in supermarkets, such as pet food, canned food, milk, bread, bottled sauces and the like. Those packaged goods were much heavier and more difficult to work with in comparison with the products contained in the general merchandise area. As Mr Cucanic said, in an affidavit filed in the proceeding: "You can be required to lift up to 20 kg repetitively when working in the dry grocery area." 12 In the general merchandise area, Mr Cucanic was required to pick boxes from individual pallets that weighed between 500 grams to a maximum of 15 kilograms in weight. 13 Prior to suffering an injury to his back on 31 October 2001, Mr Cucanic regularly worked in the dry grocery and general merchandising areas. After a short time away from work (about six days) Mr Cucanic returned to work on light duties, as part of a rehabilitation program. He continued to perform light duties, within his classification, until his termination on 15 April 2003. 14 By letter dated 2 April 2003, Ms Blackstock, the Human Resources Manager at IGA wrote to Mr Cucanic as follows: "Dear David I refer to previous correspondence from our office regarding the review of your return to work and active employment with IGA. I advise that we have now completed the review of your employment taking into account information provided by your treating practitioner, independent medical advice and rehabilitation reports. I have reviewed the Standard Operating Procedure for an assembly storeperson and formed the opinion that these duties are not appropriate based on the medical advice, which indicates you are unable now, or in the near future to return to your pre-injury duties as a storeperson. I have considered whether another position might be suitable/available to your needs but unfortunately none is available I have formed the opinion that your incapacity is of a nature that precludes you from resuming your pre-injury duties as a storeperson in the near future. You will appreciate that we are not able to hold your position open indefinitely. I have therefore arranged a meeting at the above address on Tuesday 15th April 2003 at 1.30 pm with Rick Sola, Warehouse Manager and myself to discuss your ongoing employment. If you have anything further to discuss before the meeting please do not hesitate to contact me. Yours sincerely Meredith Blackstock Human Resources Manager IGA Distribution (Vic) Pty Ltd" 15 On 15 April 2003, representatives of IGA terminated Mr Cucanic's employment as it was clear that he was unable to return to his pre-injury duties without lifting restrictions. His medical advice was that he should not lift goods weighing in excess of 15 kilograms or engage in repetitive bending and twisting. This meant that he was unable to be employed in the dry grocery area performing the range of tasks expected of a storeman working in the area where he had spent most of his time working prior to his injury. 16 A document in evidence in the proceeding specified the type of duties involved in the job of "order picking – dry grocery". There was no issue as to its accuracy. Amongst other tasks it referred to the following: · "… · weights handled range from 100 grams to 20 kg-packs of flour, dog food etc. Each employee per shift picks an average of 18 pallets, i.e. 2 pallets per hour. Some items are bulky and awkward to handle, employees are required to pick from floor level to above shoulder height. Intermittent force required manoeuvring goods from shelving to pallet." The same document referred to the "skills required" as, amongst others: "… · Reasonable level of physical fitness; · An ability to work in a range of positions…" The particular position 17 The particular position which Mr Cucanic occupied at IGA's distribution centre in North Laverton was a storeperson Grade II that was "the level or rank" from which he performed his tasks: see Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J. However that is not the entire description of the particular position of Mr Cucanic. As McHugh J said in Christie at 304: "A person's position…is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position." 18 McHugh J considered at 304 to 305 that the requirements of a particular "position" may be different from those of a particular "job" and that in some cases the distinction "will be of little significance". 19 In the instant case, Mr Cucanic's position was his job. Before his injury, his job was to perform the tasks of a Storeworker Grade II in the dry grocery and general merchandising areas of the distribution centre as an order assembler. His position or job was not the post-injury, lighter duties, employment, which he engaged in as part of a rehabilitation program. His "job" or "position" was not any work IGA may find for him to do within his classification without aggravating his back injury. But for the injury to his back, Mr Cucanic would have been expected to continue to perform storeworker duties in the dry grocery area for a majority of his working time with the remainder of the time spent in the general merchandising area, performing tasks within the competencies of a Storeworker Grade II. That is what his particular position was for the purposes of s 170CK(3) of the Act, which provides a defence to an application based on s 170CK(2)(f) if: "…the reason for terminating employment…is based on the inherent requirements of the particular position concerned." "The inherent requirements of the particular position" 20 It was an inherent requirement of Mr Cucanic's position, that is, "his actual duties" (see Cosma v Qantas Airways (2002) 124 FCR 504 at 512) and Christie at [1] per Brennan CJ, that he be required to regularly lift more than 15 and up to 20 kilograms in weight in the dry grocery area and engage in repetitive bending and twisting. He was unable, after 31 October 2001, to perform the inherent requirements of his particular position. 21 The inherent requirements of a particular position refer, at least, to the physical ability to perform the characteristic skill of the employment: see McHugh J in X v Commonwealth (1999) 200 CLR 177 at [11]. A requirement will be "inherent" if it is an "essential element" of the particular employment or position: see X at [31] per McHugh J and at [102] per Gummow and Hayne JJ. 22 At [102] in X, Gummow and Hayne JJ said: "The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. Further, the reference to "inherent" requirements would deal with at least some, and probably all, cases in which a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work." 23 It was an essential requirement of Mr Cucanic's pre-injury position that he regularly lift up to 20 kilograms in weight and engage in repetitive bending and twisting. These tasks were not peripheral to his position but central to the performance of what IGA required him to do. 24 As Gummow and Hayne JJ made clear in X the inherent requirements of a particular position or employment are not judged by performance of work modified from that originally performed by an employee to assist his rehabilitation needs. Further the possibility that a position may be moulded to suit the needs of Mr Cucanic on a permanent basis begs the questions examined above. Conclusion 25 Having regard to the foregoing I answer the questions for determination as follows: · Mr Cucanic occupied the position of Storeworker Grade II in the performance of order assembler, filler, pick ups and stretch wrapping work in the dry grocery and general merchandising areas of IGA's distribution centre at North Laverton ("the position"). · The inherent requirements of the position included all essential components of the position, that is, all the major tasks required to be performed by someone occupying the position. · Mr Cucanic, because of his physical disability (being an injury to his back) was unable to carry out the inherent requirements of the position. 26 Consequently, as IGA has made out its defence under s 170CK(3), the Court will order that the application be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 20 September 2004 Counsel for the Applicant: Mr I Fehring Solicitor for the Applicant: Clark & Toop Counsel for the Respondent: Mr P Burchardt Solicitor for the Respondent: Legal Employment Solutions Date of Hearing: 13 and 14 September 2004 Date of Judgment: 20 September 2004