Employers are within their rights to dismiss employees who lack the capacity to perform the inherent requirements of their role. However, when questions concerning capacity arise, employers should ensure there is medical evidence to support their decision. Medical assessments can be relied upon for diagnosis of the employee’s condition, assessment of ability of the employee to perform the specific duties associated with the role, identification of modifications or adjustments that may be necessary and a possible timeframe for the employee to return to work.
In a recent case before the FWC, a bus driver with substantial nerve pain and anxiety was placed on modified ‘light’ duties for a period of 16 months. Following careful review of countless capacity-to-work assessments, abandoned return-to-work plans, meetings and medical reports which indicated that the employees condition was unlikely to improve in the future, the company made the decision to terminate his employment due to restricted capacity.
The employee’s condition surfaced when he was driving a bus and experienced pain in his left wrist and thumb, which required him to visit the emergency room. He continued to suffer from a shoulder injury, anxiety, depression and panic attacks, which heavily affected the performance of his duties. For the next 16 months, the employee obtained a series of medical certificates which indicated that he was required to work on modified duties. The company developed return to work plans, but the employee’s participation was often stunted by his deep-seated anxiety and ongoing panic attacks about being at work.
Ultimately, the FWC decided that the employee lacked the capacity to perform the inherent requirements of his role as a bus driver. Prior to his dismissal, the employee was authorised to perform light duties with no lifting for three days a week. He could use his injured arm/hand with modification and was only authorised to drive for 30 minutes at a time. This was inconsistent with the requirement that employees be able to drive buses for periods of at least one hour at a time while applying a sustained level of attention, concentration and judgement.
The FWC agreed with the employer that it was clear from the abundance of medical assessments that the employee had little to no capacity to perform his pre-injury duties. The FWC was not satisfied that “any additional time, or more information or opinion would have made any difference to the outcome".
Further, the commission could not accept the employee’s argument that he was not given the chance to rehabilitate by the company. Over a period of 16 months, the company made every effort to return the employee to work, modified his duties based on medical advice and even provided him with a rehabilitation consultant. As a result, the FWC could not support a finding that the employee was unfairly dismissed.
Lessons for employers
- Correctly identify the inherent requirements of the role, which are the core components of the position.
- Medical practitioners must be provided with an accurate, up to date and well detailed job description so they can confirm whether the employee can perform the necessary daily tasks.
- Following illness or injury, consider whether reasonable adjustments or modifications are necessary to enable the employee to return to work. Provide a reasonable timeframe which will allow the employee to be fit and able to continue with their pre-injury/illness duties.
- Ensure the steps taken during the return to work process are detailed and well-documented.
- Where it is found that an employee lacks capacity and dismissal is the chosen course of action, ensure proper process is followed and the employee is afforded procedural fairness.
In a recent case before the FWC a bus driver who suffered from substantial nerve pain and severe anxiety was dismissed following a 16-month period of medical reviews, “capacity to work” assessments, abandoned return to work plans, meetings and medical reports. Although the employee was performing modified duties, there was little to no capacity to perform his pre-injury duties and the Commission was satisfied that the driver lacked capacity to perform the inherent requirements of the role.
 Mr Vijayan Kothandan v Transdev Melbourne Pty Ltd T/A Transdev  FWC 2119 (13 April 2018).