Employer Can Request Claustrophobic Tradie To Work In Enclosed Spaces

Published July 04, 2019 (last updated July 20, 2020) -
The Fair Work Commission has ruled that a business in the elevator industry can require an employee, with severe claustrophobia, to work in a confined space.

A long-term employee of an elevator company was hired in 1996 as a trades assistant. In 2002 an incident occurred to the employee, where he was trapped in a suspended elevator and subsequently developed acute claustrophobia due to the incident.

Four years later, in 2006, the employee was transferred to the escalator team. The employee was reportedly comfortable in that position, with his claustrophobia managed.

However earlier this year, due to ‘operational requirements’, the 63-year-old employee was rostered on back to the elevator team. According the employee, the elevator team would affect his claustrophobia.

The employee made an application to the FWC, citing safe workplace obligations and saying he should not be required to work in the elevator team. As he’d been working on the escalator team for 13 years – working there far longer than any other team – the employee argued that working on the escalator should be considered “normal duties” rather than “restricted duties”.

In addition, he put forward that his employer was aware of his claustrophobia (describing it as “common knowledge”) and felt the employer knew that transferring him between teams would affect his performance at work.

Under his company’s enterprise agreement, the employee also argued that the employer was entitled to provide him with a safe work environment.

Meanwhile, the employer argued that the employee’s trades assistant role had the same requirements for both the escalator and elevator teams. Meaning, the employer could move employees around both teams, as long as they saw fit, and as long as it was safe for the employees.

In ruling in favour of the employer, Commissioner Hunt accepted the employer’s argument that working in the elevator team was a requirement of the trades assistant role, adding that “it appears to me that Kone can, with some modification of its crews, accommodate [his] condition.”

However, Commissioner Hunt suggested to the employer that they should offer the worker a six-monthly health check-in, to see how healthy and happy he’s feeling, and if any accommodations can be made for him.

Pertinently, Commissioner Hunt warned the employer that inclusion or absence of those check-ins would be considered if the situation ever resulted in an unfair dismissal application.

In making the ruling, the Commissioner also cited the employee’s age and own statements about retirement.

“He has stated that he has a small number of years that he would like to continue to work for [the employer] before he retires,” the Commissioner said, regarding the employee.

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